Johnson v. United States

Stаtes, 30; 599 A.2d generally R. Watts v. Unit- Ct.Crim. omitted). (D.C.1976) (en (citation mur- of the two Thus one 362 A.2d ed vacated, error). and under banc) convictions must (defining plain She has der vacate the so; indeed, choose to not shown we done she has the circumstances (identi- theory” “conspiracy aiding abetting instruc- error at all. The conviction judgment and correctly unambiguously stated the H” on the fied as “Count tion form). See, Cooper’s e.g., v. United conviction applicable law. commitment Jefferson 5; (“Count F”) & n. stand supra, 463 A.2d at 683 will and abettor an aider Quarles v. United affirmed. (D.C.1973). “disapprove” Cooper asks tous regards “imprecise” phrasing

what she as the VII instruction, asserting that it of the standard murder Cooper’s conviction of Appellant ambiguous in case because the “al- this (Count co-conspirator liability theory on a abetting leged aiding and was itself act of H) respects the In all other is vacated. crime,” pistol. namely, possession of a We appellants are affirmed. of both convictions First, so, to do for two reasons. decline court, argument in the trial was not made part. part, vacated in Affirmed opportunity to and thus the court had no might modify way in a the instruction ambiguity. any arguable

have eliminated whole,

Second, viewing the record as a jury

see no reasonable likelihood that only any way confused about the aiding abetting in-

crime to which the applied, namely, the murder of Ste-

struction Appellant Cooper’s argu- phen Royster. JOHNSON, Appellant, A. William ment, novel, entirely on while is founded v. speculation. STATES, Appellee. UNITED Likewise, for we find no basis No. 91-CF-5. in the court’s alternative instruction reversal liability. con co-conspirator need not We Appeals. of Columbia Court District Cooper’s challenge part of the sider to this instructions, assuming for the sake even Argued Sept. 1995. properly argument that the issue is before Oct. 1996. Decided against Cooper charge murder us.14 The theories, jury un to the on alternative went instructions, and

der the court’s meticulous found form shows that

the verdict first as separately, one

Cooper guilty on each on the “con and abettor and then

an aider note, however, theory.”

spiracy We Cooper separate sen imposed on two “When there

tences for murder.15 may not be convict killing, the defendant

one murder.” Thacker than one

ed of more Cooper either trial court co-conspira- made in the objected Lyons 14. Counsel Lyons. instruction, ground now raised not on the tor agreed eventually Lyons' Cooper, counsel virtually properly in acted emphasize with modifications the court the instruction We so, Cooper's one proposed. leaving decide whether doing it for us to to those that he identical be vacated. join should object did not murder convictions at all and of the two counsel did not 514- v. United by Lyons’ counsel. Thus the See Garris objection made by Cooper argument in this court now made Kent, (D.C.Code аppointed by M. §§ Elizabeth this murder while armed 22- court, DC, (1996 Washington, appellant. for Repl.)), conspiracy -3202 to dis- possess tribute and with intent to distribute Tourish, Thomas J. Assistant United (D.C.Code 33-541(a)(l) (1993 § narcotics Attorney, States Jay Stephens, with whom B. Repl. Supp.)), possession & 1996 of a firearm Attorney United States at the time the brief (D.C.Code during § a crime of 22- violence filed, Fisher, and John R. Daniel S. 3204(b) (1996 Repl.)), carrying pistol Carey, Friedman and Caroline Marnock As- (D.C.Code 22-3204(a) § without a license sistant Attorneys, United States were on the (1996 Repl.)). appeals He his conviction on brief, appellee. grounds incorrectly that the trial court WAGNER, permitted prosecution Judge,

Before Chief to introduce evi- FERREN, crimes, TERRY, STEADMAN, uncharged dence prosecu- SCHWELB, FARRELL, improperly tion KING, RUIZ, exculpatory failed to disclose and material, REID, BELSON, and that the trial court erred in Judges, Associate and admitting against him certain statements of a Judge. Senior co-conspirator. majority A of a division of BELSON, Judge: Senior appellant’s this court voted to reverse convic- argu- tion on the The basis of his other crimes presented by issues this case lead us reaching points. ment without his jurisdiction reexamine the law of this con- 1994). (Slip op., Appellee November cerning the admission of evidence of crimes petitioned United States of America for re- other than the crime with which a defendant hearing rehearing petition en banc. The charged. so, Having done we reaffirm the rehearing granted, en banc was and the longstanding principle in set forth Drew v. prior decision and order of the court vacated. United States1 that evidence of another appellant’s We now affirm convictions. crime prove disposition is inadmissible to charged. commit the crime At the same opinion, pri- we concern ourselves time, recognize we continue to that the inad- marily with the other crimes evidence issue missibility of such evidence of other crimes split explain why which the division. We may be if overcome it is offered on and are satisfied that the trial court did not abuse determined to be relevant ato material issue when, having analyzed its discretion the is- in the case. reaffirm We also that the Drew sues applying body before it of law application only rule has to evidence of an- developed concerning has “other crimes” independent other crime that is of the crime evidence, or Drew it ruled before trial that charged, apply and that it does not to evi- disputed evidence would be admitted. acts, conduct, dence of including criminal however, additionally, holdWe thаt the evi- directly proves charged. the crime We dence was direct of the crime policy will follow the set forth in Federal regard and admissible as such without Rule of Evidence although 403 that exception policy presumed prejudice admissible, may relevant and resulting otherwise and exclusion in Drew. described if substantially excluded its value is give the We reasons for our conclusion that outweighed by preju- judge of unfair the trial did not in abuse his discretion dice, apply policy and will the manner which he controlled the devel- generally, opment admission of evidence but also to and use of the evidence at trial. Finally, the decision or not to unpersuasive Brady2 whether admit evidence we find qualifies of other evidentiary arguments crimes that for admission and Johnson ad- exceptions under the to the Drew rule. vances.

I. II. Appellant government alleged appellant William A. Johnson was convict- The premeditated degree ed Tyrone first Johnson and Bruce Void killed Car- U.S.App. Brady Maryland, 1. Drew v. United D.C. 373 U.S. 83 S.Ct. 85 (1964). 331 F.2d 10 L.Ed.2d 215 first was tried rington, partner phen- and from Void’s. Johnson their a cocaine severed (PCP) demand, cyclidine operation. night response speedy his and On 1, 1989, murder, September drug in his while he sat car distri- guilty was found District, Carrington charges. weapon shot twice in the In a conspiracy, bution head, passenger trial, side of his car subsequent once from convicted on all Void was bullet, counts, once from the with .38 caliber of this court affirmed and a division a .45 bullet. driver’s caliber Min- side Void v. United his conviction. killed, Carrington utes before he was A.2d 374 driving seen the scene of murder his near passenger car with Johnson seat and III. following sport closely

Void behind Void’s utility vehicle. Motion A. Pretrial “Other Crimes” The Ruling inferably Carrington

Whoever shot stole chain, portable telephone key his trial, moved bar the Prior to Johnson keys latter of which held for both the car and government eliciting “other Maryland apartment. nearby apart- crimes,” focusing particularly on production ment doubled as the center of the killing boys.3 the two ring persons, narcotics and a home for three trial, opposed successfully the motion. At son, Carrington’s Carrington’s girlfriend, Maryland slayings of the was the evidence Brown, Crystal younger and Brown’s broth- admitted. shot, Carrington er. Minutes after was calls exclude evi- moving before trial to the placed apartment porta- were from the dence, urged application of the stric- Johnson telephones Carrington of and ble both Void. “other evidence laid against tures crimes” shooting, Less an hour after than the follow- Drew, supra. asserted that out Johnson entry apartment, an unforced into the the the was inadmissible because evidence drugs pistol nine and a millimeter were sto- established, by government clear and had (the only len from rifled bedroom closet convincing that Johnson was con- ransacked), place home that and the was crimes, required nected the other with boys the two lived were and who there shot Alternatively, progeny. and its under Drew boys, killed. The Johnson whom had prejudice appellant argued danger that the occasions, ages played prior on were twelve by of the presented the admission killings, ap- and A week the thirteen. after and value that outweighed by pellant stopped Maryland were and Void ground. should excluded that truck, police in the stolen nine Void’s and pistol pos- was found in Johnson’s millimeter the government sought The admission of boys session. The were killed bullets Maryland killings the under two evidence of fired the same that was .45 used First, government as- separate the theories. Carrington. shoot that, assuming Drew were rules serted applicable, they were here because charged single in a satisfied Johnson and Void were prove premeditated proposed to use the evidence with the murder of indictment accused, recognized excep- Carrington, conspiracy pos- identity of the to distribute and true, argued narcotics, This charge. tion Drew. weapons sess killers of the chil- government, because the alleged, as acts further- indictment overt certainly Carrington were almost conspiracy, the defendants dren and ance assertion, had, Supporting this Mary- the same. among things, robbed significant chro- money, government pointed to the apartment drugs, guns, land links nological evidentiary between boys. the two Johnson’s case was and shot however, Counsel, argument no con- sought advances of evidence 3. The motion also exclusion Maryland apartment burglary cerning burglary At and related offenses. illegal possession and of of a related offenses argument almost en- counsel concentrated oral handgun and, before and after murder both killings accordingly, tirely we do appeal, Carrington. counsel advis- On Johnson’s also. position. takes that es us Johnson still crimes, two pretrial inference that whoever en- stage disputed motions that the Maryland apartment tered the knew what evidence was admissible. The trial court they (knowledge would find uniquely rather assumption ruled on the that the Drew line of Johnson), held Void and and the fact that applied surrounding cases to the issues evi- boys Johnson, pro- knew Void and thus dence of the crimes. As we will viding the two special with a reason to kill explain, upon the Drew strictures admission boys prevent gov- identification. The of other apply crimes evidence do not urged ernment prong the second directly proving guilt. a defendant’s Drew was satisfied because the assuming analysis But even that a Drew outweighed case, required in this as the trial court for Also, value of response the evidence. assumed, part the most we would not over- argument Void, an by co-defendant whose discretionary ruling turn the trial court’s yet severed, case govern- had not been the evidence should be admitted. ment insisted that the evidence could not be by, example, telling “sanitized” 1. The Drew Rule gun that the Carrington same that killed had been apartment, used If prior rather than evidence of bad acts that are telling them that gun bullets from that independent were criminal nature and removed from the bodies of the charged two children. prove predisposi crime is offered to crime, tion to commit the it is inad government’s argument second for ad- missible. As stated in Drew: mission was that the evidence fell outside the special rules of Drew because it was direct principle long standing It is a in our proof of conspiracy. the narcotics In this law that evidence of one crime is inadmis- regard, exclusively relied prove crime, disposition sible to to commit upon argument grand jury had jury may from which the infer that Maryland killings listed the as overt acts of charged. defendant committed the crime conspiracy, the and thus the had juries Since the that likelihood will make prove they govern- that occurred. The improper high, such an inference is courts ment did not use as argument a fallback the presume prejudice and exclude evidence of that the evidence of the acts was other crimes unless that evidence can be proof direct Carrington’s of murder and substantial, legitimate admitted for some apart therefore was admissible even from the purpose. argument proved that it an overt act of the 11, 15-16, 85, U.S.App. 118 D.C. 331 F.2d 89- conspiracy. omitted); (emphasis original; 90 footnotes The motions court found that the Drew (James) States, see Jones v. United 477 A.2d requirements that, were satisfied. It held 231, States, (D.C.1984); 237 Sweet v. United proffered evidence, prosecution had 315, 449 A.2d 318-19 clearly convincingly established and that Generally, things two must be estab uncharged Johnson committed the crimes. application presumption lished to avoid person Evidence that the same committed prejudice that attends other crimes evi “powerful,” both сrimes according was to the First, dence. court. The court also the evidence must be offered ruled that the evidence “substantial, purpose,” regardless legitimate was admissible of Drew for in because it directly to, conspiracy, cluding, relevant to the inas- but not limited one of the follow (1) (2) (3) proved motive; intent; much as it one of the overt acts issues: absence conspiracy. (4) accident; The motions court also found of mistake or common scheme (5) that the value Drew, of the evidence out- plan; identity. U.S.App. or or weighed prejudicial effect. 16, Second, D.C. 331 F.2d at 90. even if the court determines that such evidence is Ruling B. The Threshold Drew was not being legitimate purpose, offered for a an Abuse of Discretion additionally court must consider the relative are satisfied that the value of trial court the evidence and the dan We concluding did not abuse ger poses, its discretion of unfair it and the pros- in which no instance conclude that the balance favors admission. record reveals implicitly or explicitly German v. United ecution its witnesses (D.C.), denied, it conclude that suggested cert. 484 U.S. 108 S.Ct. predispo- crimes evidence evinced L.Ed.2d the other charged crime. to commit the sition adjudication

If there has not been a final crime, guilt as the other our decisions have establish, by prosecution required

also Pursu- The Evidence was Admissible evidence, convincing Identity clear other Exception ant to the com- crime occurred that the defendant are also satisfied that We mitted it. Groves United fall properly have found the evidence to could (D.C.1989), on other modified exception. The identity within (D.C.1990) (en banc); grounds, A.2d link Johnson to a crucial between amounted Roper see v. United Carrington. killing That the same and the (D.C.1989). But Huddleston v. United closely linked gun was used both events 1496, 99 485 U.S. 108 S.Ct. boys killing of so short the two. The the two (1988) (discussed L.Ed.2d 771 footnote Carrington after murder was addi- a time infra). Carring- tionally probative identity likely killers more ton’s because was 2.Purpose Pre- Admission than apartment kill the burglars of the would disposition boys if boys in silence order to them difficulty concluding We no Thus, killing burglars. knew reasonably trial court could have concluded persons greatly the class of boys narrowed prove the evidence was offered to Carrington’s responsible for mur- potentially predisposition to commit the homi- govern- hardly surprising that the der. It is with, begin prosecution cide. stated To pressed ment for admission of offering prove that was the evidence to identity merely genuine issue case, identity, principal contested issue case, only real issue. but the just why carefully laid out this evidence identity.4 very integral Convincing Standard Met 4. Clear presentation each detail of this included —it connecting inci- facts central the two Addressing requirement, the another Drew prosecution’s force to the asser- dents —lent ample support on record trial court had offering not tion that it was evidence that there was clear and for its conclusion prove predisposition a crime.5 to commit Maryland kill convincing course, fact that Johnson was pre- ings It is a in occurred and possible, advance Groves, supra, 564 to them. See purpose textual admission of evidence “connected” dispute “wholly was no that the primarily” predis- A.2d at 374. There which bears on Further, Maryland in Thompson killings 546 occurred. position, v. United (D.C.1988), 414, substantially connected to A.2d 419-20 but the record Johnson was ways: in he seen with killings several supports prosecution that the conclusion Carrington’s cel Carrington before disguising evi- moments purpose of the was not stolen; keys a addition, phone were call was reading In lular dence here. our 1015, (D.C.1978); States, 392 1020-22 types crimes ad A.2d 4. One of the of other 11, Drew, exception U.S.App. identity supra, to the 16 & relates D.C. at n. mitted under 118 "signature” "signature” ‍‌‌‌​​‌​​‌​​​‌‌‌‌‌‌​‌‌‌‌​​​‌‌‌​‌‌‌​‌‌‌‌​‌​​‌‌‌​​​‍crime. In govern- so-called 11. case the F.2d at 90 & n. In this 331 situations, prosecution must establish crime "signature.” attempt to a did establish ment enough points similarity in that "there are surrounding the combination circumstances inadequate Camp proffers, see examples For probability two crimes to create a reasonable n. 7 450 A.2d bell v. United Groves, person committed each.” that the same (D.C.1982), Bussey, 139 v. and United States (internal quotation supra, marks U.S.App. F.2d D.C. omitted); Artis United denied, (D.C.), S.Ct. 479 U.S. n. 4 464, cert. (1986); v. United 93 L.Ed.2d Evans placed phone they kept moments later to the one knew were who where house, apartment, shortly knowledge arguably belonged which was thereafter sub which jected knew, Johnson, entry; to an Carrington, unforced Johnson and Brown uniquely, However, apartment; (Carrington’s almost what girlfriend). as the (thus boys providing argued, entry knew Johnson him could have defense special apartment with a killing motive for them so as to without force could have been identification); prevent possible by locking his mil made carelessness and the nine door, pistol possibility limeter and there was even the apartment stolen from the young boys opened killings given by the time of the two the door to the was both addition, In safekeeping days Johnson to assailants. as the defense did Brown for be argue, Carrington’s shootings people other than killers appellant’s fore the and found in short, conceivably apart possession days could have entered the later. In it would be drugs gun. ment require unreasonable to and stolen the more substantial Thus, burglary “connections” the fact of the alone did between Johnson and the Ma ryland provide unquestionable an link killings.6 between contrast,

two events. the use of the .45 at ineontrovertibly places both showed almost Danger 5. Probative Value and of Unfair two events were connected. Prejudice gun boys, they use of the on the two since say We cannot that the motions court especially likely identify were to be able to finding Void, pro abused its discretion Johnson and both of whom knew the them, bative value of the boys evidence exceeded the played and had further tend prejudice.7 of unfair prove As to ed to that Johnson and killed Void value, substantially the evidence advanced Carrington. Unquestionably, burglar a prosecution’s case. That the .45 was greater known to the children would boys used to kill apartment, the two reason to fear than one ultimate detection Carrington less than an hour after burglar was killed who was unknown to them. And weapon, closely the same linked the being afraid of linked the children to a events a manner that no substantially greater other evidence in murder would have did, (another) peculiarly appellant and thus identified centive silence them murder perpetrators “ordinary” burglar. and Void as the of the D.C. than an See Robinson v. (D.C. slaying. 1993) (motive help prove evidence can identi things ty). Two other connected the two In this fashion the record establishes strongly suggested prosecution’s events and thus need for the evidence of the (1) part killing Carrington: killings, being Johnson took reasonable need Carrington’s keys apartment balancing were factor to be considered in the murdered, missing against prejudice regarding after he was and the value force; apartment was entered without and otherwise admissible evidence. See Easton (2) (D.C. drugs gun the and some- v. A.2d 906 were stolen United 533 (D.C. Void, Winfield, connecting 6. v. United 676 A.2d 1 the evidence Void to the Cf. banc) weaker, 1996) (en (requiring only "reasonable.pos apartment was a consideration in deter- sibility” proffered mining probativity of link between evidence of the relative of the other Void, third-party perpetration of a crime and the crime crimes 631 A.2d at 381-82 & n. evidence. issue; Moreover, relying partly "roughly helped reverse 15. Void’s defense counsel admissibility). plant partial by agreeing the seed of exclusion to situation” of Drew stipulate allegedly that the same .45 that killed case, Carrington dischаrged 7. In co-defendant Void’s the same motions was less than an hour Thus, judge although jury Maryland. rulings that the could learn later in while the in ruled Maryland, happened appear about much of what in in- Void and in the instant matter incon- there, sistent, cluding they presented that the same .45 was fired it were two different cases treating boys ways, judge’s could not be told that the two were mur- in two different and the differently judge indicate abuse of dis- dered. The reasoned that since the nine them does not pistol cretion its exercise. millimeter was found on Johnson but not but rather careful

1095 narcotics, a 1987).8 of trafficking large in amounts say of This is not that exclusion day, the boys’ be on the same and the evidence of the murders would earlier shootout power killing Carrington if the of style mandated even other evidence “hit” orchestrated fully implicated is “rea Johnson. factor of head —was to be side his shots either Juries, applying in the rea sonable” need. prominently part prosecu- as of the featured standard, may demand a sonable doubt cases, perhaps thus tion and the defense high guilt, showing very probability of of a jury would making it the inevitable first-degree especially one is of when accused it deal- that was know from several sources murder. unsavory very events. ing with some danger prejudice, of unfair

As the recognize that the eval Finally, we acknowledged killing the of two must be identifying of for relevance boys keep weighing evidence innocent them uation deplorable, quintessentially potential prejudice the intruders is worse than court, jury undoubtedly think ill the would of John- trial -discretionary function of the if he son it became satisfied that did it. We degree to its great of deference we owe might recognize danger jury the that a also at 481 Light, supra, 360 A.2d decision. See heinous be anxious to blame someone this (broad discretion); Joy Helicopter Bell likely jury But not used act. it is D.C., Textron, Inc., 1, 7, 999 U.S.App. propensity the crimes as evidence (trial (1993) discretion F.2d Carring- tending to show Johnson killed function); carrying this height out its when unique relationship given ton the between (3d Long, F.2d States v. issue, and the the evidence lone contested Cir.) (judicial restraint most desirable when word, jury, identity. in a would reviewing analysis), cert. de other crimes likely reached conclusions about John- nied, L.Ed.2d 439 U.S. S.Ct. proclivity for before it was son’s violence foregoing the consider With guilty of satisfied that he the mind, say that mo we cannot ations Light Compare crime. v. United finding court abused discretion tions of of the evidence value Maryland out shooting boys limiting prej- of danger Further of unfair posed danger of Maryland killings weighed the unfair arising udice from the wrongdoing— by fact of it.9 that other evidence might topic be general not briefed and never On the of the to be that issue was factors concluding weighed presented such whether admit to this court. evidence, one treatise states: objec- appeal, raised 9. At trial and on Johnson prej- deciding of whether the unfair as of certain other evidence tion to admission substantially outweighs like udice and the 3, supra. As note other crimes evidence. See value, variety of mat- incremental concedes, of the admission Johnson’s counsel considered, including strength ters must Maryland apart- burglary of the evidence of the as evidence to the commission an there was not ment and the theft committed crime, other crimes, the similarities between discretion, highly probative as was abuse elapsed interval of time has participation the entire chain Johnson’s crimes, need for the between the surrounding Carrington's murder and events degree efficacy proof, and the alternative potentially prejudicial as probably will rouse to which the killing boys. The admission of overmastering Strong, hostility. John possession mil- nine evidence of Johnson’s (4th ed.1992). § on Evidence McCormick Carrington’s days handgun mur- limeter six after added.) (Emphasis gun highly probative. The had been was also der reviewing ruling We add that during apartment the bur- from Brown’s stolen glary court, applying are not the criterion Johnson to the bur- and that evidence tied of Evidence discussed Federal Rule be- glary. testimony several weeks below, Brown’s that approved [otherwise that rele- "evidence value, Carrington’s Johnson murder she had seen fore is vant] be excluded if photo- cleaning handgun like a that looked a danger outweighed by substantially of unfair graph special and Wesson was of a Smith .38 reviewing test prejudice,” are it under the particular type test, strongly probative that because as passes it used. As it the trial court killings. any of weapon not used in of is not necessarily passes the of FRE 403. It test however, According testimony, .38 expert a necessary approval our to discuss whether retroactive, weapons that was one of the Colt policy short-barrel discussed below FRE Drew whether the C. It Necessary Apply was not joined evidence of one of the two Here properly offenses could have been used to prove joined offense, the other and occa- We have reviewed the motions court’s sioned the court’s policy against focus on the decision challenged to admit the evidence as admitting evidence merely proves dispo- a Drew issue because the sition to commit crime. Drew made it abun- proposing the evidence under the Drew iden dantly clear prohibition that its was directed (save tity exception for reference to an overt independent at crimes charged. of the crime act of conspiracy), and the motions court Thus, quoted the Drew McElroy from But, ruled having context. explained States, 76, 79-80, v. United 164 U.S. 17 S.Ct. why we find no abuse of discretion 31, 32-33, (1896), 41 L.Ed. 355 where the motions court’s ruling, point Drew we out Supreme Court applicable noted that that the Drew strictures applicable were not joinder statute did not joinder authorize “the here because the evidence of Maryland felonies, distinct provable by the same murders did not fall within the Drew rule at resulting evidence and in no Rather, sense given all. that the evidence of the same U.S.App. series events.” Maryland D.C. at killings was such proof direct 15, 331 appellant’s (emphasis supplied by F.2d at 89 guilt of the charge instant court). Drew Based the two on these occurrences statements and could not be said to be others, independent the Drew another, court concluded in of one relevant Drew did not part apply. that when “the two crimes arose out of a continuing transaction or the same set of recognize We that it is debatable whether events” the admitting evidence of legal position this adequately preserved both in one trial is minimal. 331 F.2d at 90. prosecution argument as its to the motions court that acts were In Miles v. United 374 A.2d proof direct dealt with an (D.C.1977), overt act of 282 explained this court the rela- conspiracy which was later withdrawn. tionship uncharged between the other crime (Azam) Ali v. United 520 A.2d charged offense a case in which (D.C.1987); (Tyrone) Johnson v. joinder was not an issue. There we summa- cf. (D.C. 730-31 rized the Drew “Ordinarily, rule as follows: 1992). But appropriate we think it to discuss prior evidence of acts which are criminal in proof analysis direct identify here both to nature, adjudicated not, whether as such or anas alternative holding basis for our wholly independent which are clarify an area in which there has been charged, crime is inadmissible unless it confusion, illustrates, i.e., as this ease exceptions comes within one of the listed in distinction between evidence of other crimes Drew v. (empha- United States.” Id. at 282 subject that is to Drew strictures and other (James) supplied); Jones, sis supra, 477 evidence which independent is not of the A.2d at 237. charged crime and thus admissible as direct (Abdus-Shahid) Ali v. United guilt. (D.C.1990), denied, cert. Although may simply be convenient 502 U.S. 112 S.Ct. 116 L.Ed.2d 213 plug any uncharged evidence of offenses into (1991), analyzing after relationship be analysis, important Drew it is to remember charged tween the uncharged offense and the this appropriate has never been the (possession, crime several weeks before the explain why been, course. To it has not we murder, charged shotgun a sawed-off like begin with Drew itself. murder), the one used in the this court held Drew involved an prejudicial assertion of that the evidence of uncharged crime was joinder. This led the United States Court of relevant offense “and thus not Appeals Circuit, for the high- D.C. then the independent an crime.” Id. 376. “Rath jurisdiction, er,” est court of concluded, to consider the evidence “constituted and, Carrington could have been used to shoot sufficiently probative evidence was to warrant person handguns, deferring not familiar with it would our to the motions court's decision to look similar to the .38 Smith and Wesson. This admit it. court, however, gov- noted that the charged” evidence of the crime and thus ble. The (Ab- holding prove regular of the Id. at 377. in ernment had use admissible. Our acts, dus-Shahid) evi- illegal or immoral and Ali was house for consistent with the days earlier of events of the two principle person’s prior dence “[a]n that accused improper of use. possession physical regularity to show means of commit- needed of ting the It added: proba- crime is some evidence bility guilt, of therefore his is admissi- evidence of another Drew evidence is States, ble.” v. 379 A.2d Coleman United charged. independent of the crime crime (D.C.1977). 710, 712 July 16-17 and 28 The evidence another, of inde- as evidence not admitted King in unequivocally We later stated v. Thus, even pendent crime. it was not States, (D.C.1993): United 618 A.2d pur- improper for the arguably admitted repeatedly Our cases held admis- pose proving appellant’s character of bad sibility [possession of this kind of evidence disposition or to commit crimes. pistol allegedly used assault with (citation omitted; emphasis Id. upon kill] intent to is based a determina- (Abdus-Shahid) Ali, original); supra. directly tion of whether was relevant to some issue case. We have never States, Likewise, in v. Lee United held, now, and do not do so that such (D.C.1984), one ac A.2d where evidence must meet the standards estab- a com rape while armed with knife cused (Citation lished the Drew line of cases. he a plained of evidence that had carried omitted.). car, a limit in his the court noted that knife ing propensity is not regarding instruction generally Imwinkelreid, See Edward UN- necessary crime is “when evidence one (“Imwinkel- CHARGEDMisCONduot Evidenoe inextricably with the evidence (1994). Thus, intertwined §§ reid”) 6.03-.13 Sweet v. necessary he сommitted States, (D.C.1982), United (James) v. charged.” crime See Johnson we held Drew strictures were not (D.C.1991).10 States, 596 A.2d 980 applicable inculpatory where the defendant’s victim, statements to the to the effect that he “inextricably in Lee statement of the The raped persons, had or killed other were of- rule tertwined” was rooted Smith Unit solely fered to establish the mental state In ed 312 A.2d rape. the victim the Smith, post-Drew cases deal one of first defendants, Thomas v. United 588 A.2d 272 threats witnesses with (D.C.1991), was held not to the defendant was evidence threat bawdy maintaining disorderly a Drew because it was “an admis house controlled (1989 sion, guilt, § en Bepl.). directly [and] relevant to is violation of D.C.Code 22-2722 threat, subject a such was the of a stakeout with other house twined another, 17th, prove July tending between 16th but but defen- act, jus days obstruction of dant arrested until ten later. unrelated criminal was not 785; gath- A.2d at Ford v. claimed that evidence tice.” 312 see Edward defendant (D.C. during ered “other 647 A.2d stakeout was crimes” United 1994) appear presumptively (post-crime evidence that was inadmissi- conduct—failure rule, indicating con- such criminal If is Drew the trial non-Drew evidence within the instruction, duct, judge give limiting exercise sound discre- generally the trial must court must a cautionary upon request for See, e.g., passing v. United tion in as did here. Jones (D.C.1984) (trial jury's limit the consider- has instruction would proper purpose. See general duty sponte that evidence to its to instruct sua on limited ation of Thompson, (courts supra, purpose mitted, 425-26 which other crimes evidence is ad for effectively necessarily well delivered assume that drawn reduce, failure to do so is error). dissipate Conversely, if where evidence instructions reversible prejudice). Where the other en that a defendant unfairness not within Drew indicates gaged involved in conduct as serious conduct other than the offense criminal in criminal case, Lee, would charged, supra, the sound exercise discretion is not as in an instruction Nonetheless, granting request invariably always given possi required. almost result might improper bility juror an instruction. make use that a 1098 part consequence

for to as a arguably trial —relevant show consciousness of of the first— States, guilt); Wages another, also prove see v. United to they and tend one for 1053, (D.C.1991) (leaving others) A.2d undecid- (among cogent perpe- reason attempt ed whether defendant’s to bribe wit- Mary- were to trators of each known the two “other ness was crimes evidence—rather victims, and for that reason them. land killed [than] circumstantial evidence of crime Thus, Maryland of the offenses evidence charged”). cаtegories falls into the first the non-Drew described above—direct and substantial governed A related situation not Drew proof guilt Carrington’s mur- Johnson’s explain arises when evidence is “to offered presumption against der.11 The Drew admis- surrounding immediate circumstances sion “other not of true crimes” evidence was charged.” the offense v. United Green . (evi applicable States, (D.C.1982) here. 440 A.2d necessary “complete story”); to dence States, Campbell v. United A.2d Balancing D. in Test General (D.C.1982) (same);

430 n. 4 v. Wooten United (evi States, importance This case demonstrates 285 A.2d 309-10 against the balancing value uncharged dence of offense is to admissible offense). potential for unfair explain charged circumstances of instances, judges evi- dealing perform In must whenever relevant those we are closely charged poses prejudice. of unfair so dence “‘events related to the applies prof- place they in time and are When the Drew rule but the offense neces sary complete story excep- ... to of the crime fered falls within one of its tions, by placing nearly just it in nearby proof context of and this case of direct Drew, contemporaneous happenings.’” subject weigh Holmes v. the trial court must (D.C. United 580 A.2d apparent probative value of the evidence 1990) (quoting Williams v. United 549 against unfairly prejudicial effect that (D.C.1988)); have, v. United Toliver likely thereby is determine (D.C.1983). 468 A.2d it. whether to admit From foregoing, it is clear that cases, least, In close determination play strictures do not into Drew’s come (1) be controlled whether admission every instance in which evidence offered to appropriate is where value prove guilt charged of the could be offense (2) or, impact prejudicial conversely, exceeds support prosecution offered in of a of another permitted preju- admission should unless Specifically, apply crime. Drew does not (or ex- impact substantially dicial exceeds (1) is and sub where such direct ceeds) probative value. The difference is (2) crime, charged stantial is semantic, merely may spell as it the differ- closely intertwined with the evidence exclusion; admission in- ence between (3) crime, place charged necessary deed, says the choice we make much about charged crime in an understandable con juries system’s our confidence in hence text. receptivity to evidence that is conceded Winfield, supra, then, be relevant. In case the Ma- evidence of Cf. ryland apart quite murders was admissible Maryland excеption. Drew independent applicable, were not In where Drew is murders because cases See, through e.g., evidentiary ways. them stream ran we have stated rule both same 430; charged gun Campbell, supra, crime. The same A.2d at Jones and the both, they to one used in occurred close Drew, occurring subject there also

another time —the second cases not has possession prior weapon that the evidence than the of a similar 11. We note Ali, (Abdus-Shahid) relationship weapon supra. bears an immediate the murder murders offenses, causally, weighs heavily temporally both This circumstance the balance especially strong stronger, example, against prejudice. that is — of explanation trial court’s consistency.12 a lack think it inferred from the been of We clearly. prejudice important ruling that the rule be stated found that that it had its Therefore, clarify opportunity take this probative value. substantially outweighed that, regarding the admission of evidence 1, at 587 n. 591. Id. pol- generally, jurisdiction will follow that follow we announce we will Because icy set forth in Federal Rule of Evidence 403, require note take of its FRE we should may relevant] 403—“evidence be [otherwise danger prejudice of unfair ment substantially probative if value excluded its is substantially outweigh probative value be outweighed danger prejudice of by the unfair may excluded. relevant be fore evidence apply policy ...13 in the other will commentary Rules Federal While crimes context as well. We will discuss history of the legislative of Evidence and the briefly the led us to considerations that have extensive, they quite not discuss these conclusions. are do rules “substantially” See why the word was used. opinions of FRE Several our have cited Joseph Stephen Gregory Saltzburg, Evi & See, e.g., v. 403 as authoritative. Reed Unit- States, Federal 585, (D.C.1990); in America —The Rules dence ed A.2d 584 591 (1987). § at 5 The “substan 13.3 States, 966, Lampkins v. the States A.2d 401 outweighs” apparently is tially approach (D.C.1979). Thus, 9 could 970 & n. a treatise general policy promot federal product of prac- state that FRE 403 is consistent with much evi of of as relevant tice District Columbia. Steffen admission reasonably possible. Huddle Fitzpatrick, dence as See & Brian The Law of GRAAE 681, 688-89, ston v. United 485 U.S. IN EVIDENCE THE DISTRICT OF ÍV-12 COLUMBIA (1995); Report see on also the Committee 1500-01, 99 L.Ed.2d 771 108 S.Ct. of Court Rules Division IV District Margaret Berger (1988); Weinstein, of of of & JACK Proposing Columbia Bar Rules Evidence Joseph MoLaughlin, Weinstein’s of Evidence Superior Based Federal Court at xvi Preface (“Weinstein’s Evidenoe”), Evidence, 403 Rules Comment to Rule (1995 ed.); of 2 Jones Fishman, Clifford (Feb. 1984). however, significantly, Most (7th ed.1994); § sеe also 11:10 Evidenoe affirming upon this court Rule relied 403 409 A.2d Laumer v. United excluding ruling trial court evidence certain (en banc). its “probative because value ... was substan- 403, or at least Federal Rule of Evidence tially outweighed by danger [prejudice].” danger unfair or Reed, requirement its that the supra, at 591. in Reed While outweigh “substantially” undue apparently expressed the trial court had not value, adopted by least probative has been pro- the outcome of its consideration of the Alaska, terms, Only posed forty in those this court which evidence states.14 involving In cases Drew issues this of undue waste or considerations delay, has said at times value various cumulative time, or needless presentation outweigh permit prejudice in ad must mission, order to evidence. see, e.g., Pittman v. United (D.C.1977), converse A.2d Evidence, 91-103; 403: Ala.R.Evid. 14. Weinstein’s Club, Ltd., See, e.g., v. was true. Smith Executive 403; 403; 403; Ark.R.Evid. Cal.Evid. Ariz.R.Evid. (D.C.1983); v. Unit Williamson § 403; 403; 352; Del.R.Evid. Code Colo.R.Evid. 1982). (D.C. See ed § Idaho 90.403; 403; Haw.R.Evid. Fla.Stat.Ann. opinions also the of the D.C. Circuit in United 403; 403; 403; Iowa R.Evid. R.Evid. Ind.R.Evid. 253, 256, U.S.App. Marcey, v. D.C. States Ky.R. 5-403; 403; Evid. La.R.Evid. Md.R. 403; (1971), Kearney, F.2d 281 and United States Minn.R.Evid. 403; Mich.R.Evid. 403; Me.R.Evid. 328, 332, U.S.App. D.C. 420 F.2d 170 Neb. 403; Mont.R.Evid. 403; 403; Miss.R.Evid. § 403; R. Evid. N.J.R.Evid. 27-403; Rev.Stat. N.H. 403 provides Evidence 13. Federal Rule of 11-403; Nev.Rev.Stat. 403; N.M.R.Evid. §48.035(1); entirety: 403; 403; N.D.R.Evid. N.C.R.Evid. § 2403; Or. Exclusion of Relevant Evidence on Grounds 12 Okl.St.Ann. 403; Ohio R.Evid. Confusion, Prejudice, or of Time Waste 403; 403; 403; S.C.R.Evid. R.Evid. R.I.R.Evid. relevant, Although S.D.Comp.Laws be excluded § 19-12-3; 403; Ann. Tenn.R.Evid. substantially out- if its value 403; 403; Utah R.Evid. Vt.R.Evid. TexR.Crim.Evid. weighed ‍‌‌‌​​‌​​‌​​​‌‌‌‌‌‌​‌‌‌‌​​​‌‌‌​‌‌‌​‌‌‌‌​‌​​‌‌‌​​​‍prejudice, unfair Wis. 403; 403; W.Va.R.Evid. 403; Wash.R.Evid. issues, misleading jury, 403; Wyo.R.Evid. confusion § P.R. 904.03; StatAnn. wholly otherwise adopted FRE chose al rule majority and the vast of state rules not to qualifier “substantially.”15 include the interpretation affords for application. While it has suggested been import adding “substantially” may word We conclude that we should also great,16 it is anticipate reasonable to policy regarding follow that same judges will exercise their discretion to subject to a Drew analysis quali that is admit such evidence in some instances in any fies for admission excep under they might which otherwise not do so. tions to Drew. recognize Cf. pre We that Allen v. United 1219, vailing view at common law was that (D.C.) (en banc), 1227, cert. denied 505 U.S. proponent of such evidence had the burden 8060, 120 (1992) (“Pro 112 S.Ct. L.Ed.2d 916 persuading judge the trial on balance bative evidence should not be excluded be outweighed preju value unfair cause of crabbed notions of relevance or ex ImwinkelREID, supra, See § dice. 8:27. juries.”) cessive mistrust of (quoting Riordan adoption Since the of FRE 403 and FRE

v. Kempiners, 831 F.2d (7th 690, Cir. 404(b),17however, balancing procedure in 1987)). federal Supreme courts has evolved. The question decisively Court settled the Having matter, for fed considered the Huddleston, supra, eral courts in determined to 485 U.S. at use the formulation set forth 681, 1406-97, at including FRE S.Ct. when it used the the word “substаntial- ly,” requirement FRE connection with the admission of evi- value generally “substantially outweighed” by dence challenged when it is “un- as fairly prejudicial.” doing analysis of unfair Our so will further of an issue policy 404(b) admitting arising involving as much under FRE relevant 687, 691, evidence as Id. it is reasonable and fair to in- crimes. 108 S.Ct. at clude, 1502;18 STRONG, see gain jurisdiction will also for this John MoCoRMICK on advantage (4th ed.1992). uniformity § with the feder- at 811 Evidence 19; 1991) (Proposed R. prudent may to afford such notice. Such notice Evid. N.Y.Code Evid. any possible also Unif.R.Evid. 403. surprise obviate § 403; claim of unfair 403; Mil.R.Evid. request a avoid for continuance. See Ford v. Commentary quoted 15. See to Alaska R.Evid. (D.C.1994), 647 A.2d 1181 403: 96-97. Farrell, J., Weinstein's separate statement of Evidence, id. at 1186. 16. One commentator has observed that “it is not Supreme unanimously 18.The Court held in Hud- readily apparent that Alaska’s omission of 'sub- prelim dleston that a trial court need not make a stantially' any practical impact.” has had inary finding government proved by that the Evi- had 5; America, supra, § 13.3 at see Andrew dence in preponderance of the evidence or clear and Dolan, Evidence, Prejudice Rule 403: The Rule in convincing evidence that the defendant had com 49 So.Calí.Rev. question. mitted the other bad act or crime in Instead, Supreme Court held that similar acts 404(b) provides pertinent part: 17. FRE admitted, subject proba evidence should be to a (b) crimes, wrongs, Other or acts. Evidence tive/prejudicial balancing, "if is there sufficient crimes, wrongs, of other or acts is not admissi- support finding by evidence to that the prove person ble to the character of a in order defendant committed the similar act.” Huddle conformity to show action in therewith. It ston, supra, 485 U.S. 108 S.Ct. at 1499. however, may, pur- be admissible for other stated, judge As we have found, the motions in this case motive, poses, opportunity, such as matter, preliminary govern as a that the intent, preparation, plan, knowledge, identity, convincing ment had established clear and or absence of mistake or accident.... evidence that the other bad acts had occurred 404(b) quoted language of FRE is consis- and that Johnson had committed them. Johnson tent with District of Columbia law. We observe argues appeal support record that the did not adopting policy that we are not in this case the finding. disagree. We requiring give advance notice We do not determine here whether the above- intent use other crimes evidence which was holding 404(b) described of Huddleston should be fol- in FRE included amendment in 1991. jurisdiction, lowed States, Daniels v. United But we also observe that even without a rule or cf. notice, policy rеquiring (concurring such the trial court has opinion), agree require parties judge's the discretion to as we with the motions to disclose in finding government advance their intention to use evidence of other had satisfied the crimes, prosecutor may demanding convincing and in event a find it more clear and standard.

HOI summary Evi- point, E. Crimes” on this then: References “Other if other to prove crimes evidence is offered Trial dence at offense, propensity to commit an it is inad Judge McIntyre, At trial before subject missible. If other crimes evidence did not ask the court reconsider Johnson offered, may Drew analysis be admit pretrial mo Judge Eilperin’s ruling on the qualifies exception ted if it for an government using tion to bar the restricting Drew rule its use. We reiterate activity in killings and other evidence of that, analyzed correctly when evidence is as murder, Maryland shortly Carrington’s after coming purview, prosecu within Drew’s “the relating possession and evidence to Johnson’s showing tor has the burden that the evi handguns before after murder. recog dence falls within one or more of the all Although the abandoned exceptions.” Thompson, supra, nized killings alleged three overt acts Furthermore, A.2d at 424 n. 18. we do not drug conspiracy, distribution Johnson did not here, intact, consider leave the therefore judge then trial the ask the to reconsider requirement that evidence that defendant pretrial ruling Maryland that evidence of the question in committed the other crime must killings proof as direct of was admissible preliminarily by be clear established and con guilt Carrington. of the murder of Johnson’s vincing supra. evidence. See note Even Indeed, essentially in judge the trial stated if qualifies, judge the so trial evidence the colloquy limiting over instruction that the should19 danger still exclude it if the weapon proof use of the same was direct prejudice substantially unfair poses it trial, guilt. reviewing transpired In what outweighs probative identifying its In value. we consider the manner will whether preferable approach the to the admission of government which used that the evidence such evidence under FRE we are unfairly prejudicial, trial was Johnson’s accord the following statement the argument.20 counsel asserted at oral Ulti Appeals United States Court of for the Ninth (fully mately, assumption the out at on borne carry Circuit: “The must the trial) judge recognized trial the dan showing proffered burden of how the [other ger might un that relevant evidence assume is crimes] evidence to one or more relevant fairly form, prejudicial inquiry our is whether case, issues and must demonstrate failing judge the trial his discretion in abused that, balance, value is not development of the control use substantially outweighed by danger evidence at trial. prejudice unfair to the defendant.” United Conners, (9th States 825 F.2d trial, Cir.1987) At Johnson’s trial counsel did (citation omitted). theOn other object prose to the manner in which the hand, theoretically if relevant evidence could Maryland cutor of the used evidence support charges subject additional is not but conducting occurrences in the examination of analysis to Drew because the crimes opening closing making witnesses or independent are not of the crime Nevertheless, judge statements. trial and the evidence direct crime played keeping role con commendable charged, only it must surmount the final minimizing presentation trol thus hurdle all of whatever evidence sort might clear, i.e., prejudice unfair that this evidence may must the evidence be excluded prosecution substantially produced. undertook if its value is out prove by circumstantial evidence weighed by the unfair Void, instances, accomplice, his poses. proponent Johnson and severed all Virtually satisfy Carrington. must court that had killed unassailable should Johnson, Void, proof that and Car- be was the admitted. may prop- language "may FRE be exclud- 20. Even where other crimes 403 uses admissible, ed," erly be called be found to "should” here we use in our formulation upon as a determine whether there was error order court’s to inform exercise presentation. manner of See Hill v. result of its discretion in a Drew situation. 600 A.2d 58 rington partners were in the sale of papers gun. gun gone narcot- for the ics, riding and that Johnson was papers with Car- and the were there. rington, Void, immediately followed a few “moaning” While the use of the word prior Carrington’s minutes death. While unnecessary, we note that it was one isolated foregoing powerfully alone indicated that word the course of a detailed statement. Johnson killing Carrington, had a hand in Further, object trial counsel did not to this

reasonable minds could find doubt as to the reference, during opening either state- charge of murder if that were the evi- ment or later at the bench. We are satisfied supporting charge. By dence showing reading from our of the record that there that what occurred after the murder of Car- nothing significantly objectionable in- rington was in all likelihood committed flammatory opening about the statement’s persons who workings both knew the inner Maryland killings. treatment of the drug operation, special and had a reason prosecutor unduly Nor did the focus kill boys, prosеcution sought Maryland during evidence of the murders prove convincingly that Johnson killed Car- case, presentation of its which included rington.21 testimony twenty-eight It is witnesses. statement, opening In its prosecution true that the did fact of elicit the suggest did not killings Maryland killings from its first witness. appellant’s demonstrated propensity to com- witness, Brown, But that over testified two charged mit the offense. The statement con- days and laid out critical detail the back- only tained significant three mentions of the ground conspiracy, of the narcotics which Maryland killings. The first two were refer- understanding was essential to both that ences shootings to the fact of the and the charge linkages between Johnson and familial relationship boys of the two and a Carrington’s part murder. As of Brown’s description Maryland of the murder scene. events, chronological as she relation of de- brief, They relatively dry were and were scribed she home to discover the how arrived Perhaps rather than dramatic. the most viv- unlocked, apartment door to her she stated language employed by prosecution id was matter-of-factly that when she looked a shootings reference to all three boys’ room she found that each had been night question thing.” as “a terrible shot the head. statement, Surely, testimony impact, The third which came as the had some prosecutor explained appear but we note that to reaction of Brown Brown’s answers reflect, shot, boys anything, as she came home to if a cautious find the two word prosecutor being warrants a closer look: to avoid too emotional. We foregoing unfairly cannot find that the apartment, And in her I believe her inflammatory. questioning And while the re- is, sound, testimony moaning she heard a briefly boys turned to the deaths of the boys she discovered that the two were shot testimony, the close Brown’s direct those boyfriend’s ... her son and her little questions simple produce were and did not brother. She went into her room and she emotional answers. everything pulled found out of her closet. police’s testimony And the Maryland killings [sic] and her As to references to the testimony you witnesses, pulled will show it was out they we note that too spot laying down to a purely there was the were appear factual and do not to suggested It identity, was the who first on the issue of we cannot limiting regarding need for a instruction the evi- say instructing the court erred in in accordance exception. dence admitted under a Drew request (George) with the of the defense. See court insisted that defense counsel draft the in- (D.C. Jones v. specificity, nоting, struction with "I don't want 1993) (limiting emphasizing risk im instructions jury something your to tell that that would harm matters, proper such that defense not want Thus, argued client.” while it can be them). Further, defense counsel asked the court explicitly jury instruction should have told the to include the same instruction in its final propensity, not to use the evidence as charge, largely and the court did so. telling instead of that it could use the

H03 just suggest how much blood was on bullet propensity. been fashioned person Maryland boys, A one of passed through who lived next to the the brain of apartment straightforward related in a man- it had been question and the of whether (shots through squeam- ner he heard lack of what the wall cleaned. counsel’s Defense screams), questions crucially later related the three ishness was also exhibited timing testimony of these events. The of the put expert in near-succes- he a ballistics detective, might who have been sion: scene, grisly asked to describe focused Now, Q. weapon .45 caliber if it was a largely on the bedroom closet that had been head from a and was shot short [in (presumably by kill- Carrington’s ransacked away], distance how far would the bullet ers) identity and the of the nine millimeter gone through my travel it had head? after pistol inferably that was from the stolen apartment pos- and later found in Johnson’s Q. Well, you Do Okay. let me ask this. testimony session. Her the death of you you if this. Do know a bullet know factual, boys dryly the two and con- head, goes somebody’s through does Indeed, only page transcript. sumed generally have blood on when it comes during killings were not even mentioned re- out the other side? direct of this examination witness. Nor was testimony provided by 5ji % unduly graphic ‡ those Í-C # gathering photo- evidence and -your Q. beyond exper- So it also be would graphing the scene. say goes a bullet tise whether through somebody’s through head and caution, prosecution’s contrast portion head where the brain is right note that defense counsel into waded located, beyond your also be [it] would Maryland killings. Of you expertise say expect would whether course, that Johnson chose to this evi- use bullet; to find brain tissue on that is that dence not amount of his did waiver to. correct? objection earlier to the admission oth- of (Charles) er crimes evidence. Jones Unit- stipula- to enter also declined defense (D.C.1978). ed 385 A.2d kept some of more might tions that have the Nonetheless, use of Johnson’s this evidence coming testimony before the clinical goes directly required to whether reversal is See, Imwinkelreid, §§ jury. supra, 8:11-12 manner in the was the which evidence (defense limit, or evеn exclude other can Miles, presented. supra, 374 A.2d at 283 See by entering stipulations crimes ad- evidence (no defense a con- error where the “made mitting the the would fact on which fully air scious tactical decision to the evi- Christophek admissible); Mueller & dence”); see also Parker v. United Kirkpatrick, § Laird Evidence 4.4 Modern 586 A.2d example, at For defense counsel custody, stipulate to to chain of declined example An early of the defense’s use of testimony the the result medical during the examina- evidence came cross from one of examiner removed the bullet who Maryland tion detective who described necessary. The bodies then made the apartment. the counsel scene in the Defense stipulation, encourage the court to tried concerning signs rigor questioned her counsel, you bring in telling “[0]nce defense bodies, boy’s including in one of the mortis testify going to about two a doctor who’s And, in face.” signs “rigidity the when Maryland, killings going out in that’s there deputy performed medical examiner who jury.” certainly on the [e]ffect some testified, Carrington’s body autopsy Similarly, prosecutor proposed a when engage not hesitate to defense counsel did Maryland stipulation effect that to the anatomically him detailed in an discussion boys’ in around the were found bullets just paths part of the bullets which bodies, refusing: in noted defense counsel particular braked a bullet. When head Honor, to me that can Your it occurs we cross-examining yet another evidence techni- through testimony. I cian, of that question focused on establish all defense counsel mean, really necessary point it doesn’t seem That’s the of all that evidence about mean, stipulate really. to it casings lying there are the three shell there around going Maryland police boys, to be officers who one bullet in the floor where one They been, were on boy boy’s the scene. can talk about had one bullet out of one ear, going seriously ques- that and I’m not boy. one bullet out of one The one it, ear, tion but I don’t think that we need to who had the one in his another bullet actually stipulate dug autopsy Maryland. to it. out of him in colloquy Some of the Referring between court and to the two “execution” appropriately boys counsel illustrates the unduly court’s have been dramatic. See active potential impact effort to reduce the Sellars v. United 977- (D.C.1979) any possibly inflammatory (describing shooting material as execu- tion). jury would sitting judgment noting have on the Similarly, that one bullet came only potentially Johnson.22 The boy’s inflаmmato- from “one that another ear” and bullet ry photograph “dug autopsy Mary- the court allowed before the him in out of land,” was one unnecessarily graphic. that included the hall entrance- Mills v. bedroom, way apparently to the but not the victims). rejected

bloodied room itself. The (“pool suffering of blood” and request autopsy photo that an be shown to Yet find do that these isolated comments jury. expressly reversal, It did not allow the especially light not warrant prosecution play audiotape of the call the fact that defense counsel had so dwelled placed immediately Brown to 911 after she upon body parts during pre- bullets and bodies, again showing discovered the sensi- prosecutor’s sentation of tivity potentially inflammatory nature injected pro- comments little new into the Further, of the evidence. at the start of Further, summation, ceedings. de- his trial, granted request the court a defense freely fense counsel discussed the matters of question potential jurors during voir dire autopsies, again rendering brain tissue and concerning they improper- whether would be unstartling. prosecutor’s argument And ly concerning charges influenced the District prosecutor’s only comment on rebuttal homicides, Maryland thereby both concerning obviously in di- brain tissue was screening desensitizing panel. response argument rect coun- defense concerning very sel made same material. touched summation, killings in saying his at one suggesting are not that defense We coun- point: conducting sel was ineffective a defense you boys part Then can of the in conclude one focused on some of more Rather, up, boys disturbing point woke and the two were executed. evidence. we out They recognized [appellant questions would have and defense and summation counsel’s Void], they? important Yes. same to wouldn’t Yes. The show that this material was Tyrone responsible .45 that shot the second bullet into could be handled in a manner. boys. Carrington put three And we can summarize our review of the bullets pictures. 22. THE COURT: Let me see the You or the same bullets that were fired from this prosecutor] may get not be able to those weapon [the that killed the deceased in the District in. of Columbia. Honor, I [DEFENSE COUNSEL]: Your don't right. [THE PROSECUTOR]: That’s I've set going challenge anyway, think I’m to good pictures aside a number of the of the rest testimony of the officers as to where the bullets that show a lot more of the bodies. were found and so on. Well, you got THE COURT: let me see what challenge THE COURT: You can't that. there. No. [DEFENSE COUNSEL]: just coming This is into [THE PROSECUTOR]: nothing challenge THE COURT: There’s on boys where the That’s bedroom were. that. coming door in. Right. COUNSEL]: [DEFENSE important THE That's not to this COURT: you THE COURT: But be able to chal- going trial. I don’t think I'm to allow those lenge pictures. important. these This is photos, you certainly bring in the testi- can get important thing prosecution] [the is that mony. testimony in that these are the same shells offering op remedial Maryland within its discretion manner in which evidence of the that, See, e.g., v. by saying mistrial. Smith killings used at trial tions short of 667, light all the considerations we have dis- United cussed, (continuance). case, not find are satisfied that Johnson was In this we do we certainly unfairly prejudiced.23 could its discretion We that the trial court abused mistrial, judge abused his dis- conclude that the trial since the denying the motion for re-opening exercise of control over permit cretion his court offered to development witness, and use of that evidence. also read a examination of conveying jury adequately stipulation to the

IV. v. See Jackson the undisclosed material. n. 4 661 & United argues that Johnson also (D.C.1994)(trial remedy Brady avoided Brady Maryland, v. violated error). Thus, agree gov (1963), cannot 1194, 10 we 83 S.Ct. L.Ed.2d U.S. failure to make earlier disclosure had ernment’s by failing to inform the defense that he was “material” approach to Crawford something in the nature of an offer of of its made that there was no leniency we are satisfied to witness Freddie Crawford. We because that, light especially in unpersuasive, probability comment on find this claim reasonable actions, post-disclosure one facet of it. Freddie Crawford was the trial court’s witness, prosecu proceeding defense and therefore the would have been result of the see, different, e.g., tion did not have to disclose the fact that an v. James United charges (D.C.1990), concerning offer unrelated had been our confi part him called as made to when he was is not of the trial dence the outcome — Giglio case. v. Whitley, defense See Kyles U.S. undermined. See 1555, 1565-67, 31 L.Ed.2d -, -, 405 U.S. S.Ct. 115 S.Ct. (1972); Bagley, (1995).24 United States v. 473 U.S. 131 L.Ed.2d 490 667, 105 87 L.Ed.2d 481 S.Ct. merit, circum find no at least under the

We V. case, argument stances of this Johnson’s judgment appeal is Accordingly, the prosecution’s offer Craw because equivalent” the “functional ford had become Affirmed. before he was called witness prosecutor, witness. The how defense KING, Judge, with whom Associate ever, may by not mak have risked reversal TERRY, joins, concurring: Judge, Associate prior calling Crawford as disclosure rebuttal, join opinion of the court but write part prosecution’s since Crawford that because separately express the view unmistakably a for the was then witness balancing test of today adopting the subject impeachment by we are prosecution and Evidence, Rules of Fed.R.Evid. leniency. But it the Federal offer of reference “other crimes” for so-called not follow that the failure disclose does entirety, adopt, in its Fed.R.Evid. testimony should also after re offer until Crawford’s governing the Rather, 404(b), underlying rule the court acted quired a mistrial. 1978), may convey excerpt the mistaken im- portion appends a of the vacated 23. The dissent point cautionary panel opinion judge gave pression in this case to make its that the trial unduly prosecution focussed excerpt, regarding crimes evidence other instruction however, conveys trial, an er- murders. That "charge end of when in chief” at the in his by selectively quoting impression a few roneous during gave both he such an instruction in fact pages. parts of over 1100 It fails to of a record charge. of trial and in his final the course help convey impression that one cannot entirety parts gain upon reading all in their argument appellant’s that the trial court 24. As to record, opening especially government’s co-conspirator state erroneously two admitted arguments, gov- closing that the statement ments, Butler merit. See we find it to be without to those murders did not call attention ernment States, (D.C.1984), cert. 481 A.2d 431 v. United way. inappropriate disproportionate or in a Moreover, 1398, 1029, denied, 84 105 S.Ct. 470 U.S. opinion by quoting our (1985). L.Ed.2d 786 States, 1, (D.C. 7 382 A.2d Williams v. United of that evidence. See Drew v. admissibility adoption 17.2 Formal of the remainder of States, 11, United U.S.App. however, D.C. 404(b), Fed.R.Evid. would result (1964). Doing F.2d so would be consistent First, major changes practice. two in our past practice adopted with our when we have longer require prosecution no would that the specific provisions of the Federal Rules of show, preliminarily convincing clear and Evidence.1 evidence, that the defendant committed the 404(b) provides: Rule crimes,3 Supreme because the Court (b) crimes, wrongs, Other or acts. rejected unanimously has the need such a for crimes, wrongs, Evidence of other or acts that, subject showing, having proba- held to a prove is not admissible to the character of tive/prejudicial balancing, the other acts person in order to show action con- should be admitted “if there is sufficient however, formity may, therewith. It finding by support evidence to purposes, admissible for other such as the defendant committed the similar act.” motive, intent, opportunity, prepa- 1100, 18; Ante at see Huddleston v. note ration, plan, knowledge, identity, or ab- States, 681, 685, 108 United 485 U.S. S.Ct. accident, provided sence of mistake or 1496, 1499, Second, 99 L.Ed.2d 771 accused, upon request by prosecu- requirement adopting we would also be provide tion a criminal case shall reason- 404(b), Rule after the word set forth above trial, during able notice advance of give “provided,” advance if pretrial the court excuses notice on crimes notice of its intent to use other evi- shown, good general cause nature of requested dence to do so the ac- when any such evidence it intends to introduce submit, cused. See ante at 1100 note 17. I at trial. below, these for the reasons stated con- As the en banc court today acknowledges, prevent adopt- siderations should not us from 404(b) portion appearing of Rule before 404(b) together Fed.R.Evid. with authori- “provided” the word is “consistent with Dis- 1100, trict of Columbia law.” Ante judicial meaning.4 interpretations note tative of its 804(b)(3) specifically adopted following (adopting approach 1.We of Fed.R.Evid. 405(a), 406, 703, interest). against penal Federal Rules of Evidence: statements 705, 801(d)(2)(E), 804(b)(3). Rogers See States, (D.C.1989) (en United 566 A.2d admissibility 2. Our "other crimes” rule traces its banc) 405(a), (adopts permitting Rule a character Drew, beginnings supra, U.S.App.D.C. testify opinion witness to as to the witness’s own 15-16, 89-90, held 331 F.2d at where court character); parly's of a Smith v. United inadmissible to that "evidence of one crime is (D.C.1990) (adopted approach crime, prove disposition from which to commit provides of Rule 406 which that evidence of the jury may infer that the defendant committed organization practice routine of an is admissible [, however,] [e]vidence the crime ... organization's particu to show that conduct on a (1) other crimes is admissible when relevant to conformity lar with the routine occasion was motive, (2) intent, (3) or acci- absence of mistake Melton, practice); In re 597 A.2d 901 n. 10 dent, (4) ..., (5) plan a common scheme or (D.C.1991) (en banc) ("we adopt language identily_" ... relating expert witness’s reliance Rule 703” to an upon "facts or data” which themselves are not (D.C. 3. See Daniels v. United 613 A.2d 342 admissible); v. United Clifford 1992). (D.C.1987) (adopted provision 633-35 former version of Rule 705 "under which trial majority understandably reluctant party proffering expert order that a 404(b) adopt Rule at this time because the issue testimony report turn over ... ... on which agree parties. has not been briefed expert forming opinion” which relied in generally courts should not decide issues that expressed during testimony); will be Butler v. however, briefed, (D.C.1984), I would make an have not been cert. First, denied, exception two reasons. in this instance for 470 U.S. 105 S.Ct. (1985) ("[w]e suggesting adopt I am we some untested hereby adopt not Fed. L.Ed.2d 786 801(d)(2)(E) principle subjected controlling”; that has not been to the in- alsо “[W]e R.Evid. as bar, conclude, scrutiny, by that the approach tense the bench consonant with the of all the circuits, 104(a), provisions of the Federal Rules of Evidence have that under Fed.R.Evid. federal undergone. Acceptance is wide- judge the ultimate admissi of those rules should determine and, statements”); adopted specific bility coconspirators' spread, Laumer v. where we have (D.C.1979) (en banc) provisions of the Federal Rules of Evidence in 409 A.2d 190 United above, it from our own admissibility portion missibility,” nor does differ As noted 404(b) 17; nothing more than state note subject. Rule does Ante at law on the 404(b) law.5 But Rule Moreover, District Columbia the en banc supra note 4. convincing require a clear and show does not any rule of significantly softened today has view, in my as we do. In the case favor inadmissibility, that we presumptive convincing require of the clear and context, by applied in this previously example, ment has never been made. For its qualifies for ad- holding that evidence that by origins suspect, are as demonstrated exceptions any of the Drew mission under Judge opinion in court in Kern for the only danger of if “the should be excluded 346- Daniels v. United 613 A.2d substantially poses prejudice that unfair (D.C.1992), in having evolved from dictum Ante at 1101. outweighs probative ‍‌‌‌​​‌​​‌​​​‌‌‌‌‌‌​‌‌‌‌​​​‌‌‌​‌‌‌​‌‌‌‌​‌​​‌‌‌​​​‍value.” twenty-six-year-old by the case6 decided Therefore, high- only justification Appeals United Court of for District States in expressed that has ever been er standard Columbia, longer applies a court that no by substantially undercut our has been cases that standard itself because it is bound today. opinion of the court this case Huddleston. effectively rule Because the basis for the significant never It is also that we have eliminated, no the rule itself serves has been words, expressed, many the reason that so Indeed, judge one purpose. further useful showing by convincing clear and evidence is make has said: “I think would of this court necessary appropriate. also either See Hud- jurisprudence our sense to conform Daniels, 347; supra, v. 613 A.2d at Groves dleston; convincing to all nine proposition justices surely merits Supreme Court curiam, (1990); per 574 A.2d 265 modified Daniels, supra, 613 A.2d our consideration.” 1326, 1330 Lewis v. United (Schwelb, J., concurring). at 349 thing explana The closest to an can tion of the need for that standard respect provision in Rule to the With where, discussing found Groves Huddle- 404(b) provide requiring the 404(b)’s ston, that “Rule the court observed evi- of its intent to use such advance notice admissibility sig policy presumed differs dence, why are several reasons we there nificantly approach court’s to the from this practicе. adopt should not hesitate Groves, evidence,” of other crimes admission First, entirely my experi- own speaking from respect, the supra, 564 A.2d at 375 n. 5. With Superior judge in the Court ence as a trial 404(b) of Rule Groves court’s characterization requiring from 1981 to found 404(b) begins, misinterprets that rule. Rule of “other crimes” evidence advance notice rule, by saying Drew that “[e]vi- as does the parties’ and the improved both the court’s crimes ... is not admissible dence of other affect- added). ability efficiently resolve the cases supra. (emphasis ...” See note example, an advance notice language “presumed ad- ed. For before That is not the have, not, 440-41. propriety limitations. Id. at past, done so of those we as often as parties’ adopting provi- history without the benefit of the views This demonstrates example, point. an examination of the briefs For Rules of Evidence sions of the Federal court, shows briefing, in the six cases cited in footnote 1 filed not without formal without parties question Second, did address the adoption precedent. of the Huddleston Butler, Clifford, In them: and Smith. three of fact, with the decision made rule would be consistent Butler, beyond considerably sim- we went overwhelming majority of state courts that adoption evidentiary ple a federal rule. the issue since Huddleston have decided adopted both Fed.R.Evid. case addressing are set cases the issue decided. The 801(d)(2)(E) admissibility relating of a appendix opinion. to this forth in the coconspirator’s as non- out-of-court assertion approach hearsay of Fed. and the language regard, compare of Fed. In that 104(a) judge, requiring the trial R.Evid. 404(b) quote Drew set with the R.Evid. admissibility. 439. The jury, Id. at to determine supra. in note 2 forth however, any input adopted, without court also admissibility parties, two limitations on from the Bussey, U.S.App. D.C. sharp 6. United States though even there was of this evidence 1335 n. 23 concerning 432 F.2d among 273 n. courts the federal division 1108

requirement adopted, motions prosecutor, seeking admission of this kind of 685, Although Id. at 108 S.Ct. at 1499. an generally on were made near or exhaustive examination of the state courts’ day always of trial. Such late notice almost responses to Huddleston has not been under- prompted request postpone a defense taken, preliminary research revealed the fol- entirely ground trial based on the reasonable lowing: that counsel time needed additional to inves- explicitly I. Courts sixteen states have tigate the circumstances of the “other implicitly adopted the Huddleston rule on result, crimes” As a evidence.7 trials were аdmissibility of other crimes evidence: State frequently delayed. Requiring advance no- Barr, 434, 1258, v. 183 Ariz. 904 P.2d 1264 tice, however, essentially eliminated that Santiago, (Ct.App.1995); v. 224 Conn. State Moreover, problem. with advance notice the Davis, 325, 32, (1992); People 618 A.2d 41 v. admissibility court could rule 886, 660, 666-67, Ill.App.3d 187 Ill.Dec. 248 Thus, evidence advance of trial. well be- (1993); 1381, 617 N.E.2d 1387-88 Christian- trial, fore the defense was afforded a view of (Ind. State, 669, Hornaday v. 649 N.E.2d 672 the nature of some of the evidence it would Crawford, Ct.App.1995); State v. 672 So.2d face, exactly parties and the knew what evi- Dean, 197, (La.Ct.App.1996); 207 State v. would, not, judge dence the trial or would 929, (Me.1991); 589 A.2d 933 Commonwealth subject. early admit Because of this Wotan, 727, Mass.App.Ct. v. 37 643 N.E.2d case, parties knowledge of the would State, 409, 62, (1994); Gayten 66 v. 595 So.2d disposition often reach some sort of before (Miss.1992); Thompson, v. 244 415 State the trial date. 375, 253, (1993), Neb. 507 N.W.2d 268 but see (3) (subsection

Second, count, although I made a Neb. Evid. R. 27-404 added require and convinc impression Superior I have the that most that court find clear Moore, evidence); 567, ing State v. 335 N.C. judges currently require no- Court advance 797, (1994); Broom, 440 813 State v. S.E.2d imposing requirement tice so that such would 682, 277, 1 40 Ohio St.3d 533 N.E.2d 690 n. major change practice. not come as a See State, (1988); 1156, Blakely v. 841 P.2d 1158 Ford, supra, In ante note 17. 647 A.2d at Johnson, (Okla.Cir.1992); v. 313 State Or. 1184, disposition “In we stated view of our 443, (1992); 189, 832 P.2d 453 State v. Win this case ... consideration of whether a [no- ter, 388, 624, (1994); 648 A.2d Vt. requirement adopted for tice] should be 34, Herzog, Wash.App. 867 P.2d State v. jurisdiction day.” ... can be left to another Landrum, 648, (1994); State v. “day” I submit that has come and we should (1995). 36, 40 Wis.2d 528 N.W.2d simply naturally take the course that follows adoption today, from our of Fed.R.Evid. 403 acknowledged II. Three states Huddle- 404(b) i.e., adopt ston, adopted “preponderance we should Fed.R.Evid. of evi admissibility People well. v. dence” standard: Garner, (Colo.1991); P.2d Har APPENDIX (Tex.Ct. State, rell v. 885 S.W.2d McGinnis, App.1992); v. 193 W.Va. State v. 485 U.S. Huddleston 147,455 526-27 S.E.2d 1496, 1500, 681, 687, 108 99 L.Ed.2d 771 S.Ct. (1988), Court, Supreme interpreting Fed. rejected either III. Courts five states 404(b), rejected R.Evid. the contention purposes, spec- or under a Huddleston for all preliminary find the trial court must make a circumstance, con- ified or because there was proved has the “oth predated trary higher precedent preponderance Cohen, at least a of evi er acts” v. Huddleston: State that, subject to a dence. The Court held (Del.Super.Ct.1992) (applied clear and balancing, probative/prejudicial other crimes convincing phase of a standard for evidence “if capital sentencing proceeding; is admissible there is sufficient silent on finding by applicability under other cir- support that Huddleston's State, cumstances); Phillips 591 So.2d act.” v. defendant committed the similar 7. See Ford United

ting exception the an to the Drew evidence as Thus, necessary rule. to it is not decide as (followed (Fla.Dist.Ct.App.1991) binding the evidence ground an alternative precedent Court, Supreme of requiring state because, “direct and also admissible as sub- evidence, convincing clear and that had been charged stantial crimes” of the Huddleston); established before State v. case, not see ante at it was Drew Gruber, N.H. 159-60 though support evidence even it also would (1989) (adhered requirement to that there be prosecution of another crime. crime); proof’ “clear of other State v. Co (1992) field, 127 N.J. event, In I find the Drew /non-Drew (held “evidence of the other crime must be issue, helpful. distinction than al less State, convincing”); clear and Pena v. uncharged ways, is of whether evidence con (without (Wyo.1989) P.2d reference prove guilt by is being duct introduced to Huddleston, to previous followed practice of propensity or to obtain a conviction means requiring “plain, clear convincing” evi through charged other than of the evidence dence). notes, is, majority If offense. the as the evidence is Ante at 1104. If it inadmissible. RUIZ, Judge, concurring: Associate purpose likely is not or is not offered for that agree I that Johnson’s conviction should be jury impermissible to be used by the affirmed, ground a narrower than the Then, way, may admissible. evidence First, majority opinion. agree Judge with rightly because we are concerned evi Ferren’s dissent the evidence of the uncharged may dence of conduct nonetheless boys’ Maryland murders in opposed to —as jury influence respect and confuse the gun evidence that the same that killed Car- offense, to the focus on we what rington discharged was also against safeguards appropriate protect are apartment, gun and that a stolen from that prejudice: necessary, unfair Is the evidence apartment was found on Johnson —was of proven or can the same fact be otherwise? marginal identity relevance to the of Car- delayed to Should its introduction be allow rington’s murderer, and that of the some possibility for the of the that the course trial repeated, boys’ detailed references to the necessity? certain obviate its How is it Nonetheless, prejudicial. murder were once uncharged conduct committed the judge decided that the evidence was of jury Does the understand defendant? identity Carrington’s relevance to the mur- proper purpose the evidence? This objection derer and ovеrruled defense’s pragmatic approach preferable to a rule of toto, that the evidence was inadmissible in presumptive “non-Drew” inclusion of evi action, by agree- defense took no either presumptive dence or exclusion of “Drew” stipulate identity as to presump evidence. This is not an area for by proposing bullets or that the evidence be labeling tions or formulaic as “Drew” or sanitized, Further, prejudice. to avoid the “non-Drew,” balancing by careful but for me, prime importance the motions probativeness trial court of evi found, judge preliminarily clear and con- against prejudice, potential for in dence vincing that Johnson commit- had available, cluding of measures consideration murders; boys’ ted the defense was mitigate prejudice. surprised unfairly because had been ad- my government’s Notwithstanding views merits of vised of the intention use murders; admission boys’ how we should consider the evidence of the trial conduct, however, judge specifically uncharged twice instructed the on evidence change our law con- purpose boys’ should in this case for which admitted, cerning requested by presumption that has been devel- murders defense; oped respect judge our caselaw with bal- and the concluded ancing value versus value of the out- admissibility of evidence of weighed prejudice. unfair determine the potential is, unfortunately, majority opinion, uncharged That parlance the trial conduct. by adopting majority has done abuse its in admit- what court did not discretion policy in change favor of admission that results from That is unwarranted. Resolution any application require change of this case does not such of the test in Federal Rule of law, majority I in our as neither the nor “probative Evidence whether value is believe that the trial abused its discre- substantially outweighed by of determining tion in the evidence was prejudice,” uncharged unfair conduct that tipping admissible without need of a of the excep- determined to come under a Drew Moreover, scales in favor of admission. presumption tion. applied heretofore proposed adopt has not that we against uncharged admission of evidence of party FRE 403 and neither has addressed longer operative, conduct is no for once such policy of whether the of the Federal Rules evidence is determined to be relevant as a respect balancing Evidence with government’s showing result of the that the prejudice unfair value versus exception, evidence cоmes within a Drew applied uncharged should be to evidence balancing play FRE 403 test would come into Finally, Judge King’s conduct. concur- as it all does for relevant evidence. See ante note, Judge rence and Ferren’s dissent (“We at 1103 conclude that we should also adopting balancing test of FRE 403 in policy regarding follow FRE [the 403] evi- conduct, uncharged the context subject analysis dence that is ato Drew but 404(b), yet adopting majority not FRE qualifies for admission under ex- gone only adoption part-way has toward Drew.”) ceptions to If once deemed come Rules of Federal Evidence concern exception, within Drew evidence of un- conduct, admissibility uncharged without charged subject longer conduct is no to a considering the balance struck those rules admission, presumption against but is instead admissibility thresholds and safe- between test, balancing evaluated under the FRE 403 adoption guards. partial This of the relevant policy in FRE favor admission important rules undermines an federal also reversing presumption has the effect of rules, following reason for the benefit of respect uncharged to whether conduct interpretations and state court federal recognize should be admitted.1 I adopt those rules. I do not think should majority has taken a somewhat more restric- 404(b) in FRE this case for the same reason by suggesting, tive view than does FRE 403 only part adopt that we should not prejudice ante at note where the un- federal rules relevant to evidence of uncharged from evidence of conduct substan- change charged conduct: we should not our value, tially outweighs its the trial law such a sensitive area without even (FRE court “should” exclude it. 403 states having briefing on had the benefit of excluded.) “may” that such evidence issue. majority’s slight revision of FRE 403 still FERREN, Judge, dissenting: Associate allows, however, possibility for the that a judge trial could admit evidence of un- today per- The result of the decision is to charged conduct even where charge mit the Johnson with substantially outweighs from its admission murder, Columbia, one in the District of Therefore, bearing in probative value. mind against help case also—in order to seal the presumption against the ad- our heretofore present him here —to evidence to the conduct, missibility uncharged of evidence of that Johnson committed two other murders (for convictions) improvement applica- even with this been which there had not test, balancing agree so, today up- tion of the FRE 403 Maryland. doing the court dissent, analysis Judge justice with the Ferren’s sets the fair administration of criminal [1113-1115], Columbia, mаjority only by has in the District of infra respect significantly changed reaching our law with result it does in this case but admissibility uncharged by altering long-established proba- of evidence of also balancing tive/prejudicial test for admissibili- conduct. expect majority's ap- under a conduct—even if it comes Drew 1. I would that under keenly proach trial courts would continue to be exception very prejudicial. be—can (if presume) aware that evidence of un-

HH Furthermore, My impact ty prejudicial defendant.4 of “other crimes” evidence. newly colleagues and confuse the test majority’s now dilute even under en banc standard, important ways judge admissibility erred as in several announced law, adopting a matter of abused his discre- a new thus formulation —Fed.R.Evid. (modified)/404(b) (in tion, part) replace ruling Mary- that the evidence of the —to first, why rule is indeed young boys explain, was more Drew. I land murders of two next, address, ill- prejudicial. why I believe it is probative than I would reverse new. I Respectfully, and remand for a new trial. advised.

therefore, I must dissent. A.

I. majority says portion of Fed. The help believing I cannot that the result here 404(b) “consistent italicized below is R.Evid. majority would be different if the had not law.” Ante at 1100 with District of Columbia adopted authorizing admis- Fed.R.Evid. 403— provides rule in full: n. 17. The federal sion of “relevant” the trial evidence unless crimes, wrongs, judge probative other or determines that “its value is Evidence of substantially outweighed by danger prove the charac- acts is not admissible to prejudice” appropriate person in order to show actions unfair balanc- ter —as however, conformity may, be judge apply test for a trial when therewith. It considering admissibility purposes, such as of “other admissible other motive, intent, prep- jurisdiction, opportunity, crimes” evidence.1 In this aration, knowledge, identity, or ab- long plan the common “exclu- followed law accident, sionary” approach provided or to other crimes evidence sence mistake accused, prosecu- represented by upon request by Drew line of cases.2 “presumptively provide tion in a criminal case shall reason- Such is inadmissi- 3 trial, during ble.” It cannot shown to the unless notice in advance of or able prosecutor proves pretrial if notice on that it falls within a trial the court excuses 2, shown, recognized general exception, supra good Drew note cause nature of probative any and further evidence it intends to introduce demonstrates that its such any outweighs value for the at trial. pros exclusionary which the lows the rule under 1. Fed.R.Evid. 403 in full: provides showing the evi ecutor has the burden of relevant, Although be excluded if recognized dence falls within one or more of the outweighed substantially value is exceptions”). prejudice, of unfair confusion of issue, misleading jury, or or consid- States, 1234, 623 A.2d 1238 3. Robinson v. United time, delay, erations of undue waste of or (D.C.1993) ("it long been the rule in this has presentation needless of cumulative evidence. jurisdiction that evidence of a defendant’s other inadmissible, presumptively with the crimes 11, States, U.S.App.

2. Drew v. United 118 D.C. presump- to rebut this burden on the tion”). 16, 85, (1964) (other 331 F.2d 90 crimes evi motive, dence admissible when relevant to accident, identity, or or com absence mistake States, 727, See, e.g., King plan "prejudicial 618 A.2d [is] mon scheme or effect v. United States, Because, value"). (D.C.1993); outweighed by v. 606 730 Yelverton United States, 181, Drew, (D.C.1992); pre Hill v. United been A.2d 182 under other crimes evidence has (D.C.1991); 58, (James) suggest v. sumptively 63 Johnson inadmissible since it tends to States, 980, (D.C.1991), crime, cert. propensity 596 A.2d to commit rather than bear United 1987, denied, 927, charged, 112 S.Ct. ing directly we have char 504 U.S. on the crime States, (1992); v. approach United this traditional Drew as an L.Ed.2d acterized Jefferson 1075, States, (D.C.1991); Parker v. United "exclusionary” 587 A.2d rule. Holmes v. United 720, (D.C.1991); 1259, ("Since States, Harper Rindgo 586 A.2d 580 A.2d States, (D.C.1990); (D.C.1980)], 485 488 this United 582 A.2d 411 A.2d 373 [v. 414, (D.C.1988), Thompson, cert. explicitly 546 A.2d elected to follow the exclu court has denied, permis 108 S.Ct. 98 L.Ed.2d sionary approach 484 U.S. rather than the more (1987); one.”); Thompson 358 596, German v. United federal v. United sive (D.C.1987); (in Rindgo v. United 424 n. 18 contrast with federal " " rule,' ‘inclusionaty "fol 411 A.2d at 376. District Columbia 404(b) (1991 amendment) (em- accused, prosecu- upon request by the Fed.R.Evid. added).5 provide case shall reason- phasis majority expressly The re- tion a criminal trial, during in advance of jects (“provided ... able notice the balance of the rule trial”). majority pretrial if notice on n. the court excuses See ante at 1100 17. shown, general jurisdic- good cause nature of purports “clarify” that this then it intends to introduce supra note such evidence tion “will follow” Fed.R.Evid. at trial. “regarding gen- the admission of evidence erally,” apply ante at and thus will amendment). 404(b) (1991 Fed.R.Evid. crimes evidence rule to admission majority rejects requirement without ex- £>rew/404(b) (italicized portion). under See why, 1100 n. plaining see ante at result, majority has ante at 1100.6 As right thereby defendants a critical denies created a new other crimes evidence rule. provide to com- notice that the federal rules (“sub- By combining adoption of Rule 403 part, more relaxed pensate, at least in for a 404(b) (ital- stantially outweighed”) with Rule admissibility under Fed.R.Evid. approach to portion), majority icized maintains 403/404(b) Drew, exclusionary ap- our than exceptions, supra see note traditional Drew proaсh Ford v. United has allowed. See 5, admittedly adopts probative/prejudi- a 1181, 1184-85 balancing cial test that is more burdensome day” (leaving “to another decision whether than this court’s traditional on defendant 404(b) require- adopt Fed.R.Evid. notice approach under to other crimes evidence ment); v. Lewis Drew. (D.C.1989) (“no 1326, specific rule” 1329 sum, majority supplanted jurisdiction “government provide In has this that 403/404(b)approach Drew line of cases with a to introduce notice of its intention advance evidence”). reflected in federal case law—is at which —as Drew pre- important respects with the law odds Second, majority opinion does not oth- viously in in our local courts. effect exactly rule clear what the new erwise make circuits, for ex- encompasses. Some federal B. other crimes ample, define the relevance of narrowly under Fed.R.Evid. majority’s approach are The defects evidence rather First, 404(b),7 by only adopting the relevance far partially whereas others serious. approach, majority withholds an more broadly.8 federal circuits also federal Several 404(b)— particular- important protection. Fed.R.Evid. require prosecutors to make part majority declines to proffers, and the trial courts to make on- that ized findings, involving adopt expressly admission of cases conditions the-record — that, evidence,9 has requirement and at least one circuit other crimes evidence on crimes Drew, 2, U.S.App. act or crime is similar in kind supra 118 D.C. at that “bad 5. See note 16, ("Evidence reasonably charged”); of other crimes is crime 331 F.2d at 90 close time to the motive, (1) (2) 1074, (7th in- Neely, admissible when relevant 1079 United States v. 980 F.2d accident, (4) tent, (3) Houser, Cir.1992) (same); of mistake or the absence 929 United States v. embracing plan 1369, (9th Cir.1990) (same). the commis- common scheme or F.2d 1373 each or more crimes so related to sion of two the one tends to establish the other that other, Huddleston, 687, S.Ct. at 485 U.S. at 108 8. See (5) identity person (relevant that makes evidence is "evidence 1500 trial.”). of the crime on with the commission any fact at issue more or less the existence of Castiello, 1, probable”); 915 F.2d United States v. 681, States, 485 U.S. In v. United 6. Huddleston test; 404(b) Cir.1990) (two (1st part Rule has 4-5 1500-01, 1496, 99 L.Ed.2d 108 S.Ct. exclusionary nature: "inclusive rather than (1988), Supreme Court said that when other any way prove the evidence relevant should is offered under crimes evidence Fed.R.Evid. admissible, rarely subject only to the invoked is motive, intent, 404(b) e.g., proper purpose, for a 403”). of Rule limitations probative/prejudicial balanc- the Fed.R.Evid. evidentiary applies generally to all test Birсh, 39 F.3d 9. See United States governs of other the admission submissions also Cir.1994) (10th (“government precisely ar- must crimes evidence. evidence”); purpose proffered ticulate Manner, U.S.App. Mora, (8th D.C. United States v. 81 F.3d 7. See United States v. (1989) (trial test, Cir.1996) (four court’s bal- including requirement F.2d part Huddleston, 8:28, appellate § reserved de novo review of the DENCE at 58 question moreover, Supreme whether other evidence falls rec- candidly crimes Court 404(b).10 scope lowering within of Fed.R.Evid. ognized against We of the barrier approaches are told which of these prejudicial “Congress other crimes evidence: majority adopting rejecting why— is nearly poten- so was not concerned with the —or yet significant bearing 404(b) each can have prejudicial effect of tial Rule admissibility the fairness of the decision. ensuring as it restrictions placed on the of such would not be admission Third, under the regime, new other crimes 688-89, Huddleston, evidence.” U.S. evidence will now unless be admissible 108 S.Ct. at danger of prejudice “substantially” unfair outweighs probative value, a formulation that Fourth, majority opinion purports allows admission of some traditional requirement retain Drew’s prejudicial extent is more to the defendant showing “the has the burden of government.11 than value to the that the evidence falls within one or more that, respected A treatise concludes under recognized exceptions.” Thompson, “the to exclude discretion Fed.R.Evid. 18, quoted A.2d at 424 n. ante at 1100. crimes [other evidence] does not arise when suggests majority also the balance between the worth and demonstrating proba- has the burden debatable; countervailing factors there substantially outweighed tive value is significant must be a tipping the scales prejudicial impact. (citing See ante at 1101 against evidentiary the of prof- worth the Conners, v. 825 F.2d States fered evidence.” 22 A Chaeles WRIGHT & (9th Cir.1987)). pro- 1390 Such assurances Graham, Jr„ Kenneth W. Federal PractiCe comfort, however, vide little the under (1978) § at 309-10 and Procedure government’s new rule the burden isn’t what (footnote omitted) added). (emphasis Anoth- it used to be. respected says er author adding the adverb, place, government’s In the verb, first burden “substantially,” before the “out- 404(b) weighed,” persuasion substantially is of reduced be- “Rules 403 not cause, defendant; contrary pre- only they “exclusionary” shift the burden to Drew’s may do vengeance.” sumption, presump- so with a crimes other evidence is Edward J. Uncharged Imwinkelried, tively admissible under Evi- Misconduct Fed.R.Evid. ancing probative value/prejudicial impact "may” in Fed.R.Evid. 403 and thus tell record); should occur on the United States v. other cоurts that crimes evidence "should be Alfonso, (9th Cir.1985) ("gov- 759 F.2d probative substantially excluded” if value "is out- precisely ‘must ernment articulate the evidential weighed” danger prejudice. of unfair hypothesis by consequence may which a fact of change language It is unclear from this (quoting inferred be from other acts evidence’" majority putting Mehrmanesh, thinks it is whether the a strict United States v. F.2d (9th Cir.1982))). application 403 to limitation on Fed.R.Evid. not; other evidence or “should” is an crimes Arambula-Ruiz, See United States v. 10. F.2d word, mandatory advisory impact without the (9th Cir.1993) (decision to admit other majority "must." If it is “shall” or believes crimes evidence reviewable abuse of dis- under adding strict not a limitation to Fed.R.Evid. standard, of whether cretion but "the issue massively changing present then it is other 404(b) scope falls Rule evidence within the is allowing rule in favor of crimes evidence admis- "). de reviewed novo having prejudicial impact that sion of evidence If, outweighs substantially probative on value. says 11. that relevant Fed.R.Evid. hand, majority impos- the other believes it is "may be excluded if value is sub- its i.e., adopting ing special a a "other limitation — stantially outweighed by the of unfair 403” a crimes Fed.R.Evid. "Fed.R.Evid. modi- added). Supra prejudice." (emphasis note 1 substituting "may” fied” "should” for rule, therefore, gives apparently federal The —then willing- implicitly acknowledges majority its trial court discretion to admit even modify outweighs the federal rule to meet local prejudice substantially proba- ness needs, when new, unique we now have a rule— Recognizing possibility, value. the ma- tive (modified)/404(b) (partial) jority away pure Fed.R.Evid. backs from a —to Fed.R.Evid. My colleagues approach. "should” for of other crimes substitute control admission evidence. Drew/404(h) 403/404(b)’s exception meeting an “inclusionary rule.”12 This identified that, identify- is excludable. means both with connection in a exception an allows admission fact, majority, acknowledges The intent) (e.g., identity, particular case and with change now potential significance weighing probative against prejudicial value admissibility adopts: likely increase impact, prima will make its According to ma- other crimes evidence. showings easily facie more thus jority’s articulation of the difference between —and production burden of will shift to the defen- (Drew) inclusionary exclusionary Fur- quickly (federal) dant more under Drew. respectively: approaches, —than thermore, ad- because the evidence will be least, cases, In close other crimes [the “substantially” outweighed by unless missible may be controlled evidence] determination prejudice, government’s (1) burden will apprоpriate by whether admission is reduced; production only preju- further the burden where value exceeds (2) espe- or, very quickly, conversely, will fall not but also impact dicial [Drew] hard, permitted prej- cially on a who to rebut admission should be unless defendant has (or substantially ex- impact exceeds government’s showings udicial minimal initial 403], ceeds) probative The value [Rule designed inherently put under rule semantic, merely as it persuasion burden of defendant difference may spell the between admis- prejudicial impact.13 demonstrate substantial difference and exclusion. sion majority directly dispute this does (citation omitted) (emphasis Ante analysis. My colleagues longer no confirm added). therefore, majority, admittedly long-standing rule other this court’s inherently under the new makes easier is “presumptively crimes evidence inadmissi- 403/404(b)approach than under Drew for the ble,” supra note Robinson United carry prof- when government to burden 1238; new, they prefer more 623 A.2d at fering supra crimes evidence. See all “[i]n neutral formulation: instances note satisfy must the proponent of the evidence C. Ante at court it should be admitted.” that Especially light of court federal reasons, very disagree I much For three jurisprudence construing the the ma- rules to federal formula- the court’s shift the with burden, jority adopts, proponent’s now the above, majori- First, the tion. as elaborated therefore, juris- longer mean in this no will literally judge a to ty’s permits new rule it has meant under Drew. As diction what that more other crimes evidence is admit King en Judge candidly acknowledges, “the probative of prejudicial the defendant than to today significantly Indeed, softened banc court has government. because value the inadmissibility[ any presumptive ] of merely rule trial majority says the court the in this previously applied that have evidence if the exclude other crimes “should” context,” 1107, especially substantially out- prejudice ante at because of unfair value, pro- & n. “substantially” outweigh weighs probative its ante prejudice must appear my colleagues to leave the other crimes evidence bative value before demonstrating character, other than criminal relevance 12. See Groves v. United 404(b)’s 1989) ("Rule (D.C. pre- policy of 5n. well as the burden of demonstrat- as significantly admissibility sumed differs ing probative substantially that value out- the admissibility oth- approach the this court’s weighs prejudice”). potential the for unfair evidence”); Thompson, A.2d at er crimes ("Rule 404(b) of the Federal Rules 424 n. 18 Culver, F.2d 13. See States v. 'inclusionaiy un- an rule' Evidence is viewed as (8th Cir.1991) ("It [under is defendant's burden admissible other evidence is der which crimes 404(b)] clearly had no to show the evidence only prove dis- except criminal when it tends to involved.”); bearing the issues State, 490, 597 position."); 324 Md. Imwink- Harris v. 8:28, § law, (under (1991) exclu- Uncharged common A.2d sionary approach Evidence Misconduct elried. "suggests (wording as crimes of Fed.R.Evid. to other federal, inclusionary burden”). approach, opposed to defendant has the offering burden party has “the

1H5 judge 404(b)). with at least a modicum of discretion part discarded Hav- Fed.R.Evid. admit such evidence even when by rejecting parts the Rubicon crossed substantially outweigh does value.14 two federal rules, why majority does the majority could possibility foreclose that excise, accept, rather than word “sub- by saying such evidence clear, “shall” or “must” be stantially” giving persuasive without a circumstances, excluded in such it choos- doing reason for so? es not to do so. It is therefore unclear how Second, by substituting the federal “inclu-

much, all, majority if at modifies Fed. sionary” rule for Drew’s common law “exclu- R.Evid. 403 for other crimes evidence. See rule, sionary” ‍‌‌‌​​‌​​‌​​​‌‌‌‌‌‌​‌‌‌‌​​​‌‌‌​‌‌‌​‌‌‌‌​‌​​‌‌‌​​​‍today this is court’s decision supra note 11. ways flawed in leave a reader (1) assumption majority guessing impact: opinion

Even on the about the entirely adopted slightly evidentiary has a leaves unclear modified Fed.R.Evid. how persuasion by substituting “may,” burden under federal “in- “should” for clusionary supra note I rule” can accept cannot result. I nonetheless remain —as course, government agree, purportedly does—on with majority’s implicit (2) Drew; majority pure inexplicably under admission a ap- Fed.R.Evid. adopt important protections declines proach to other crimes evidence would be too 404(b) language the omitted of Fed.R.Evid. literally radical because would allow admis- provides, interpretations as well as that vari- of other crimes prejudicial evidence with sion compen- ous courts supplied, federal impact substantially outweighs admissibility sate for liberalized under the deeply value. IBut am about concerned Accordingly, majority’s federal rules. that, majority recognizing decision while formulated, approach partially is possible mischief under Fed.R.Evid. 403 as insufficiently explicated, change thus in our written, willing modify is nonetheless to longstanding, workable rule.15 only very slightly, rule leaving the trial court permission to admit other crimes evi- point special empha- Third —as this bears prejudicial impact dence with that exceeds its argued sis—the has this probative value unless the is difference “sub- change. There is not one citation Fed. many stаntial.” In pages majority 404(b) all prosecutor’s R.Evid. 403 or opinion really why. never tells us As best brief, sought supple- court has not tell, can majority keeps “sub- word briefing. why this mental So court on stantially” simply in the rule self-generated frolic, because the such a unaided commonly federal are parties’ rules followed and be- Why simply views? has uniformity, abstractly, cause good is a idea. profound on its decided own to make uniformity away law, But the change asking rationale melts once in the for without com- begins majority accused, to by government fiddle with the rule’s ments and as by eliminating text “may,” participation by word see su- well for amicus as curiae 11, pra (just note as it I has severed and the Public Defender Service?16 believe the therefore, supra (comparing majority's ty, companion 14. See note 11 sub- cites without states of- "may” fering doing stitution of the word "should” that what for assurance this court when the Fed.R.Evid. trial court considers have done. others evidence). admission of other crimes majority purports "clarify,” merely to 16.The not Judge comfortably change, impact value/prejudicial that a Belson cites the fact 15. majority applicable analysis states have federal to crimes taken the other evidence. at at route. See ante 1099-1100 & n. 14. This in See ante It then cites "as authorita- tive,” say referring itself does not whether the states abandoned cases to Fed.R.Evid. ante comprehensive, jurisprudence workable as it concerns of facts and admission convenience; underlying testimony, merely adopted expert the federal rule for data Reed v. United (D.C.1990), adopted it whether A.2d and admis- does not indicate the states 404(b) expert testimony part; sibility the "ultimate whole or in does under Fed.R.Evid. rule,” adopted Lampkins not demonstrate whether the states have issue 966, v. United interpretive protections that & n. 9 case con- narrow Neither range report admissibility; and and it does not cerns other crimes evidence Fed.R.Evid. true, course, 404(b). by anyone adopted It is whether the federal rule was is able occasional, by legislature. majori- unanalyzed imposed to Fed. court or to find references against majority impru- judges thus to relax the barriers precipitously, acts and Court dently, admissibility, rebut- adopting, sponte, sua an ill-defined which have now become change approach showing: court’s prejudicial this other table a lesser change par- impact “substantially” outweigh pro- crimes evidence —a derived from not does adoption approach tial federal shift bative value. believe such —with- asking help identifying out for and evalu- highly prejudi- the likelihood that increases ating consequences, all the overt and subtle. propensity cial of criminal will spread jury.17 before sum, by

In applying a modified Fed. permit

R.Evid. 403 to admission “substantially crimes evidence unless out- II. weighed prejudice”; by the of unfair by purporting keep persua- the burden said, major- even With all this I believe government significantly sion while ity’s newly adopted for of other test exclusion lowering point it to where heavier is met here. The evidence crimes evidence defendant; by burden em- is shifted Crystal from Brown’s Glassmanor bracing part omitting part and one another gov- apartment important to the Drive 404(b); discuss, by failing to of Fed.R.Evid. apartment alleg- ernment’s case because resolve, judicial let alone what critical inter- center,” edly “production ante pretations apply; and do de- do conspiracy which drug for the clining any participation to invite whatsoever charged; because .45 caliber Johnson defense and the bar casings found there bullets and shell were help implications the court understand all the Carring- testimony expert which linked to doing; majority of what it is invites murder; week after ton’s and because a Car- interpretations today’s en conflicting bane murder, rington’s police found on John- extensive, opinion, costly, as as well pistol son 9mm. which had been stolen time-consuming legal disputes litigants as short, night. apartment that same struggle shape the court’s to understand and very prove this soon evidence tended to pertaining other crimes evi- new rules killed, Carrington after been Johnson had dence. police apartment where the had been guns of one of the later discovered evidence majority’s does approach new not re- Carrington. problem I have no that killed change. represents principled flect a It an evidence under either with admission unbalanced, away inequitable move from a 403/404(b) identity Drew or the Fed.R.Evid. rule for ad- longstanding, fair workable exception, Judge Eilperin permitted in the The new mission of other crimes evidence. confederate, separate trial of Superior a verbal Johnson’s formulation is invitation 404(b), significant. together, edges implications See are in this R.Evid. 403 and used See, opinions. e.g., v. United majority appears court’s Lee rec- ante at 1098-1099. The denied, reh'g moreover, ognize, precipi- that it should act (1984) U.S. (bare 104 S.Ct. 79 L.Ed.2d argument, briefing tously, when without 403); Campbell citation to Fed.R.Evid. King’s considers, rejects, Judge proposal (D.C. & n. 3 430-31 Huddleston, supra note adopt 6, primary rule of 1982) practice (stating is "District of Columbia 404(b) (trial interpreting court Fed.R.Evid. 403”). generally consistent with Fed.R.Evid. also finding preliminary that similar need not make however, satisfied, opinions the of this I am that occurred; only to must be sufficient act evidence actually grips to with the court which have come find, by jury preponderance to allow jur presented that here have stressed issues occurred). n. that act See ante at 1100 similar value/prejudicial impact probative isdiction’s 18. analysis significantly ap from the federal differs 1267; Groves, Holmes, proach. 580 A.2d at See salutary majority opinion, the feature of One 5; Thompson, 546 A.2d at 424 564 A.2d at 375 n. it, will in its that trial courts as see is indication course, court, banc has the n. 18. The en cautionary giving special for but, now be accountable law, existing change when it power the to limiting use of non-Drew other so, instructions directly so in the name of does it should do see, e.g., Toliver United change, crimes not so-called clarification. evidence— prejudice event, 468 A.2d 958 any however one should characterize In —when n. 10. doing today, apparent. is See ante at 1097 court acknowl- the the what court

1H7 why Bruce Void. Void v. explain See 631 much harder to not an discretion for abuse of the prejudicial impact conclude that the erroneous, however, Judge I do find Eilpe- Maryland murder evidence did not substan- rin’s admission in Johnson’s case of the addi- tially outweigh probative the value. The ma- boys tional evidence that the young two jority probative works hard to bolster the Brown’s care had been murdered the minimize value and the the Ma- apartment. trial, judge In Void’s the ruled ryland by explaining murder evidence what that such prejudicial evidence was more than argued the could defense have how the probative. observed, moreover, judge The jury likely interpreted evidence. the See that the non-murder evidence admissible Judge ante 1094-1096. Belson stresses Maryland from apartment the against Void that, burglary evidence, in addition to the i.e., stronger, probative, even more places “the of the .45 [Carring- use at both against Johnson because of Johnson’s direct Maryland apart- ton’s murder scene and the link apartment to the through the stolen incontrovertibly ment] showed almost gun police 9mm. the had found on him. Id. the events two were connected.” Ante at at 381-82 n. 15. This according- observation easily 1094. How true! And how that con- ly made clear that additional evidence entirely, nection could have been satisfied Maryland explicitly the scene confirm- Void, by testimony .45 caliber bullets ing one or more “murders” have would been casings, expert testimony аnd shell linked necessary even less government’s case gun Carrington, killed had been against against Johnson than Put an- Void. Maryland apartment.18 found in the way, given other admissibility satisfactorily majority explains why never powerful burglary, guns, casings and shell jury had to learn in addition that apartment, evidence from the any probative found in bullets were the skulls of two small adding explicit value from “murder” evi- boys. best majority say can do is to Maryland, dence in prove order to help that the murders would infer identity Carrington’s killer, margin- burglars if the took time to kill the especially in the Johnson case—when al— compared children, the children must known highly inflammatory, preju- them, persons so killers must have been dicial impact of boys evidence that two small frequented who the apartment including had been apartment. murdered See — Johnson. Willcher v. United 76 n. (D.C.1979) (availability of other means of This, say least, very is a strained proof, government’s need for evidence admitting inflammatory basis for child-mur- value); probative Campbell, affect place, der evidence. the first the testimo- (low probative gov- A.2d at 431 value where ny suggested boys at trial were low). for ernment’s need evidence was also sleep; killed in their was no there

Although it has “no difficulty,” supporting boys ante at the idea that the ever saw Furthermore, concluding burglars. boys murder even if the proper purpose, burglars, burglars was offered did see the feared them, majority the en apparently boys up banc finds it would wake it is apparently require majority objection 18. The pre- would de- to each tutes sented). witness detail objection, After such the trial court object fense counsel not to admission of independently weigh should and value also, fallback, other crimes evidence but as a prejudicial impact piece each evidence. suggest how it should sanitized for admis- case, therefore, considering In this when wheth- in, pieces pieces sion—some out—if weigh- er the trial court abused its discretion in altogether. court denies the motion to exclude it against prejudicial value agree; See ante at 1094 n. 6. I cannot blanket evidence, impact of the other this crimes objection to admission various related items of lump together variety should not the of related other crimes evidence should be sufficient to entering (e.g., Mary- other crimes evidence the preserve any respect a of error to claim with stealing pistol, apartment, land charging the 9mm. dis- piece of it. Hill v. United A.2d 600 bullets, leaving casings, .45 caliber shell Cf. J., (D.C.1991) (unquali- dissenting) children) murdering single analyt- the into (Ferren, objection сategory. fied to other crimes evidence consti- ical crimes” See ante at "other 1094. just likely majority counsel for burglars as the killed the faults defense (1) boys boys pro- by failing because the be able to to making would the situation worse police physical descriptions, vide the object way to the used the they burglars whether knew not. examining Maryland murder evidence in wit short, probative value this murder (2) by cross-examining nesses and witnesses majority purpose prof- evidence for the argument This about that evidence. over best, speculative fers it is at indeed make- looks, again, counsel once that defense had weight I see as it. evidence; objected to all such that once the in

Maryland murders were counsel had do with seemed that evidence what III. time; suited to case at the and that best question can be There no Void’s con- —as ultimate, continuing the trial court had the govern- viction itself demonstrates —that responsibility, problem, once alerted to the depend any way ment’s case did not in overly prejudicial keep other crimes evidence jury’s learning expended .45 caliber Jones, 287; at out the case. See gun Carrington, from bullets killed Hordge v. United cf. Maryland apartment found in the where (D.C.1988) (“trial continuing court has a present, Johnson shown have been obligation grant prej if undue a severance in sleeping two were found the bodies of joinder udice arises as a result of time boys. Moreover, indepen- of considerable trial”); during Sousa United jury significance, merely dent did denied, (D.C.1979), A.2d cert. fact; learn of this bare learned L.Ed.2d U.S. 100 S.Ct. about it over and over and over and over and (1979) (same). again, gruesome over over and over detail, though on as Johnson also was young boys Mary- for the murders of two Judge Eilperin right had Void if land. Even I did not believe initial court, judge, case. The and this Maryland admission murders evidence case, Maryland wrong in this where the erroneous, I would order reversal of apartment against Johnson —with- of the exces- Johnson’s convictions because stronger out murder even evidence—was sive, entirely inflammatory, inap- and thus against majority I than it was Void. Maryland

propriate use of the murder evi- moving juggernaut only as a this case throughout the trial. Jones v. dence See sustaining erroneously admitted “other mur- (abuse presentation against wip- of discretion to allow but also ders” evidence Johnson pertaining to homosexual ing away, government’s excessive without even (redundant Hill, relationship); 600 A.2d at 63 it, time-honored, ap- asking for balanced and excessive use of crimes evidence рroach admitting other crimes evidence reversal). separate grounds can for be only can show it is when demonstrably prejudi- more than accept majority’s insistence cannot now, effect, majority cial. The has low- unduly government did not focus admissibility, which will ered the threshold of murders. See ante 1101— increasingly be harder the accused prosecutor’s I am satisfied defend, especially because value repeated, graphic boys’ references “substantially” outweighed by now must jurors’ at- must have diverted the murders subtle, impact. I fear is a prejudicial this they case were tention from the murder prosecutors to powerful, invitation for Tyrone Carrington’s. deciding: charged with guilt, at demonstrate the defendant’s least this trial to three-murder part, propensity evi- on the basis of criminal palpa- a one-murder conviction was achieve proposition that court has dence —a ble, ably Judge demonstrated as Sullivan held with the heretofore to be inconsistent opinion for his Part V of now-vacated Thompson, Appendix. presumption of innocence. See division, forth an which I set Again, respectfully at 419. —but emphatically dissent.19 —I Further, prosecutor’s during opening early government’s in the statement and APPENDIX case-in-chief, of references to the a stream boys’ jury two focused the murders (From Judge opinion Sullivan’s appellant issue of was a whether child killer division) for the drug being alleged as dealer and an well V. triggerman Tyrone Carring- the death trial, At prejudicial effect of the evi statements, govern- opening ton. After compounded by dence was further Crystal ment Brown as its wit- called first presented amount of evidence on the two ness, tragic evening, in one woman who boys’ shootings murders. of the Evidence son, boyfriend, boyfriend’s lost and her her permeated government’s from the younger Though her she brother. testified opening closing arguments. statement to drug length operation in which about the prosecutor’s statement, opening he re Void, she, Carrington, appellant were boy’s vealed that a one bullet exited ear and involved, specific she also testified about as- boy boy that one once and was shot the other pects boys’ of the murders and the break-in during twice. He opening also stated state how, apartment. at her discussed She on Crystal ment that when Brown returned to murders, night given boys she had apartment, sound, her moaning heard a she explicit open instructions not the door for boyfriend’s thereafter discovering her anyone had tested and how she them on this son younger and her brother had been shot. by appearing past instruction in the to leave This court recognized danger has of ref returning and then to the door. She de- erences to during other crimes evidence scribed the scene she horrible discovered opening Day upon returning apartment, finding statements. United her (D.C.1976) (“Evidence Carrington’s A.2d son and her brother Carlos Cal- head, which exceptions gun lying comes within the Drew vin with a both shot should not in opening be mentioned state the floor in front of them. She testified that ment, bag try nor ruled she did not to hide the of cocaine in should be admissible with priority her her proffer government out a from dresser because “first was to get help kids.” hearing jury.”). out of the some for the She also stated While the present appellant nor Bruce distinguishable neither Void attend- case is in that here boys, ed the funerals or wakes of the two ruling pretrial allowing there was a the evi dence, though boys even men knew the both remains that references to played past. gov- had with them during opening other crimes statements “ir ernment direct examination concluded its retrievably puts before the fact that a Crystal Brown as follows: defendant has been involved crimi [other] Brown, Q. happened Ms. activity.” Bailey, nal what Carlos United States v. Carrington? U.S.App. (1974), D.C. 505 F.2d denied, already got cert. A. dead when I U.S. S.Ct. He was L.Ed.2d 438 there. respectfully temporal, geographical, majority’s

19. I also dissent established sufficient alternative, C., holding logical non-Drew in Part II. ante links to deem murders 1096-1098, it, Carrington’s although, as I understand connected with murder within the Furthermore, part opinion meaning purport even if the does to alter the Toliver. established, probative jurisdiction. Fundamentally, law of this Toliver link was value did that dis- commonly outweigh prejudicial impact. See Green v. cussion addresses what known as (D.C.1982) Toliver summarized Toliver v. United (Toliver (approv- "when its evidence admissible 960-61 value”). ing admissibility "inextricably impact outweighs note, prejudicial that is also of evidence from, crime, “intimately respectfully majority’s dissent intertwined” with the entan- probative value/prejudicial gled," im- explain "relevant to the immediate cir- relaxation of the cumstances,” pact importing complete test for Fed. '[t]o the sto- Toliver "admissible analysis ry by proving as well. See ante at its immediate R.Evid. 403 into that of the crime on trial ”). context.’ I do has not believe brother, covering of his Q. happened your And the rest what blanket that was body. Moore, Calvin III? any sign of fired? Q. Was there shots pronounced

A. He was dead about two appeared A. It to be two holes bullet days later. covering top pillow the the the was I further MR. FRIEDMAN: have no and also some left side his face there’s questions. pillow coming out of the blood right. give THE COURT: All me [L]et itself. jury a we the five-minute recess before H* % $ # H* H* the start cross examination. fired, Q. you any sign Did find of shots boys’ References to the continued murders any bullets there? throughout George’s the The trial. Prince Yes, A. I I located three .45 caliber did. County responded the scene detective who very casings. shell Two them were boys’ testified on exam- murders direct area, spots, and bloody close to the blood ination as follows: just away towards one was a short distance Now, any Q. any bod- were there —Were area, line the closet as I with this indicated you got there when there? ies (pointing). here A. There was one. any Q. you slugs, And find bul- did lets? that, Q. you And if who was know? Yes, I A. we removed did. When Carrington. A Carlos young and at- pillow man’s face Q. old How is he? him, large tempted to a move observed years I A. believe Carlos is old. right his alongside caliber that was bullet Q. Where was he? pillow his face. ear in and between Laying wrapped A on a floor bedroom large was And the bullet second caliber pulled a blanket over his head. areas, bloody spots under the of blood — carpet. actually underneath the down Q. And was he dead or alive? out, carpet square, cut had to A. He was dead. was pull carpet back and the bullet boy you Q. the other dead when Was lodged in floor. the wooden arrived? testimony government also elicited al- A No. When I had arrived he had one during its effect that case-in-chief ready transported hospital. been been only to have child could have awakened first He still at the time he was was alive immediately in the thereafter. shot head found. argument, pros- government’s closing trial, another detective who Later stated: ecutor Carrington’s au- present during Carlos you Then can conclude that one topsy regarding testified the bullet recovered boys boys were up, woke two Carrington and how from the skull of Carlos recognized They would have executed. ini- with the victim’s the bullet marked Bruce, they? Yes. wouldn’t William Following purposes. for identification tials second Yes. The .45 that shot the same testimony, that detective’s Carrington put into three Tyrone bullet retrieved the evidence technician who called boys. point into That’s bullets boys’ casings shell from the scene of shell cas- all that evidence about three

murders: boys, ings lying there around the one bul- ear, there, boy’s bullet out of you let out one one lying can Q. The one that was boy. the one his one The one who had you just briefly for the what describe ear, dug him in the another out of bullet saw? autopsy Maryland. lying male there young A. The black appeared government’s pervasive folded references to pillow to be issue of boys’ placed the forbidden top head also had deaths of his over appellant’s disposition squarely by criminal judge, the motions we are not confronted jurors, before through graphic limiting often or with the issue of in- whether unsettling testimony. Although given by otherwise effectively structions the trial court prosecutor’s per mitigated any “permissible” prejudice use of the evidence was light missible in judge’s ruling, properly of motion admitted evidence. “In the face of relating the amount of boys’ seriously prejudicial curative in- structions, murders necessary” “was far than particularly more those buried within appellant’s identity trial, establish Tyr charge-in-chief as one of the end of are one Carrington’s case, present killers. See Jones v. of minimal In the Unit worth.” Id. (D.C.1993); ed precisely prejudicial it is Hill because effect (D.C.1991). v. United of the evidence could be minimized recognize We limiting that the is not re instructions that the evidence of the quired government’s boys’ “sanitize the murders should have never reached the appear wrenching is,” noted, make it jury. less than it As this court has “one cannot Dixon, supra, however, bell,” unring 565 A.2d at drop nor “a ink can evidentiary present appellant’s excess glass case removed Thompson, from a milk.” is a clear example type prosecutorial supra, 546 A.2d at 425. Once the evidence of Jones, overkill that we warned about in boys’ improperly admitted, su murders was pra, 625 A.2d at 288. The cumulative effect the fundamental error made and the evidence reinforced the irreversibly tainted. manner appellant by exaggerating the relevance of which the ‍‌‌‌​​‌​​‌​​​‌‌‌‌‌‌​‌‌‌‌​​​‌‌‌​‌‌‌​‌‌‌‌​‌​​‌‌‌​​​‍govern- evidence was used boys’ slayings two magnified crimes for ment the error in admitting appellant which trial. prosecu was on the evidence. protracted

tor’s use of the evidence created a

trial within a trial: each reference to the

children’s murders increased the likelihood guilt would infer of the crimes appellant which upon based boys. senseless murders two Con sequently, evidentiary excess here virtu CRUZ, Appellant, Delores ally improper insured use of the evidence jury, despite limiting instructions to do otherwise. Vaughnetta PAIGE, Appellee. Though jurors presumed are to follow the No. 95-CV-1220. them, instructions administered the admis- sion of other always pro- crimes evidence is Appeals. District of Columbia Court of difficult, blematic because “it if not at Submitted Oct. 1996. practically impossible, times to avoid its use Decided Oct. Groves, predisposition supra, evidence.” improper A.2d at 374. The inference of propensity present criminal throughout trial, impermissible preju-

the entire and the appellant admitting,

dice to evidence of the

boys’ beyond murders was far the curative

scope limiting “Cautionary instructions.

instructions, given one[s] such as the in this

case, designed permis- primarily are to blunt prejudice_ They

sible imper- cannot cure prejudice.” Williams

missible v. United Because

the evidence should have never been allowed

Case Details

Case Name: Johnson v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Oct 17, 1996

Citation: 683 A.2d 1087

Docket Number: 91-CF-5

Court Abbreviation: D.C.