Lead Opinion
Thе issues presented by this case lead us to reexamine the law of this jurisdiction concerning the admission of evidence of crimes other than the crime with which a defendant is charged. Having done so, we reaffirm the longstanding principle set forth in Drew v. United States
I.
Appellant William A. Johnson was convicted by a jury of premeditated first degree murder while armed (D.C.Code §§ 22-2401, -3202 (1996 Repl.)), conspiracy to distribute and possess with intent to distribute narcotics (D.C.Code § 33-541(a)(l) (1993 Repl. & 1996 Supp.)), possession of a firearm during a crime of violence (D.C.Code § 22-3204(b) (1996 Repl.)), and carrying a pistol without a license (D.C.Code § 22-3204(a) (1996 Repl.)). He appeals his conviction on the grounds that the trial court incorrectly permitted the prosecution to introduce evidence of uncharged crimes, that the prosecution improperly failed to disclose exculpatory material, and that the trial court erred in admitting against him certain statements of a co-conspirator. A majority of a division of this court voted to reverse appellant’s conviction on the basis of his other crimes argument without reaching his other points. (Slip op., November 10, 1994). Appellee United States of America petitioned for rehearing or rehearing en banc. The petition for rehearing en banc was granted, and the prior decision and order of the court vacated. We now affirm appellant’s convictions.
In this opinion, we concern ourselves primarily with the other crimes еvidence issue which split the division. We explain why we are satisfied that the trial court did not abuse its discretion when, having analyzed the issues before it by applying the body of law that has developed concerning “other crimes” or Drew evidence, it ruled before trial that the disputed evidence would be admitted. We hold additionally, however, that the evidence was direct proof of the crime charged and admissible as such without regard to any exception to the policy of presumed prejudice and resulting exclusion described in Drew. We give the reasons for our conclusion that the trial judge did not abuse his discretion in the manner in which he controlled the development and use of the evidence at trial. Finally, we find unpersuasive the Brady
II.
The government alleged that appellant Johnson and Bruce Void killed Tyrone Car-
Whoever shot Carrington inferably stole his portable telephone and key chain, the latter of which held keys for both the car and a nearby Maryland apartment. The apartment doubled as the production center of the narcotics ring and a home for three persons, Carrington’s son, Carrington’s girlfriend, Crystal Brown, and Brown’s younger brother. Minutes after Carrington was shot, calls were placed to the apartment from the portable telephones of both Carrington and Void. Less than an hour after the shooting, following an unforced entry into the apartment, drugs and a nine millimeter pistol were stolen from a rifled bedroom closet (the only place in the home that was ransacked), and the two boys who lived there were shot and killed. The boys, with whom Johnson had played on prior occasions, were ages twelve and thirteen. A week after the killings, appellant and Void were stopped by Maryland police in Void’s truck, and the stolen nine millimeter pistol was found in Johnson’s possession. The boys were killed by bullets fired from the same .45 that was used to shoot Carrington.
Johnson and Void were charged in a single indictment with the premeditated murder of Carrington, conspiracy to distribute and pоssess narcotics, and a weapons charge. The indictment alleged, as overt acts in furtherance of the conspiracy, that the defendants had, among other things, robbed the Maryland apartment of drugs, guns, and money, and shot the two boys. Johnson’s case was severed from Void’s. Johnson was tried first in response to his speedy trial demand, and was found guilty of the murder, drug distribution conspiracy, and weapon charges. In a subsequent trial, Void was convicted on all counts, and a division of this court affirmed his conviction. Void v. United States,
III.
A. The Pretrial “Other Crimes” Motion and Ruling
Prior to trial, Johnson moved to bar the government from eliciting evidence of “other crimes,” focusing particularly on evidence of the killing of the two boys.
In moving before trial to exclude the evidence, Johnson urged application of the strictures against “other crimes” evidence laid out in Drew, supra. Johnson asserted that the evidence was inadmissible because the government had not established, by clear and convincing evidence, that Johnson was connected with the other crimes, as required under Drew and its progeny. Alternatively, appellant argued that the danger of prejudice presented by the admission of the evidence outweighed its probative value and that it should be excluded on that ground.
The government sought admission of the evidence of the Maryland killings under two separate theories. First, the government asserted that, assuming that Drew rules were applicable, they were satisfied here because it proposed to use the evidence to prove the identity of the accused, a recognized exception to Drew. This was true, argued the government, because the killers of the children and Carrington were almost certainly the same. Supporting this assertion, the government pointed to the significant chronological and evidentiary links between the
The government’s second argument for admission was that the evidence fell outside the special rules of Drew because it was direct proof of the narcotics conspiracy. In this regard, the government relied exclusively upon the argument that the grand jury had listed the Maryland killings as overt acts of the conspiracy, and thus the government had to prove that they occurred. The government did not use as a fallback the argument that the evidence of the Maryland acts was direct proof of Carrington’s murder and therefore was admissible even apart from the argument that it proved an overt act of the conspiracy.
The motions court found that the Drew requirements were satisfied. It held that, by the proffered evidence, the prosecution had established clearly and convincingly that Johnson committed the uncharged crimes. Evidence that the same person committed both crimes was “powerful,” according to the court. The court also ruled that the evidence was admissible regardless of Drew because it was directly relevant to the conspiracy, inasmuch as it proved one of the overt acts of the conspiracy. The motions court also found that the probative value of the evidence outweighed its prejudicial effect.
B. The Threshold Drew Ruling was not an Abuse of Discretion
We are satisfied that the trial court did not abuse its discretion in concluding at the pretrial motions stage that the disputed evidence was admissible. The trial court ruled on the assumption that the Drew line of cases applied to the issues surrounding evidence of the Maryland crimes. As we will explain, the Drew strictures upon admission of other crimes evidence do not apply to evidence directly proving a defendant’s guilt. But even assuming that a Drew analysis was required in this case, as the trial court for the most part assumed, we would not overturn the trial court’s discretionary ruling that the evidence should be admitted.
1. The Drew Rule
If evidence of prior bad acts that are criminal in nature and independent of the crime charged is offered to prove predisposition to commit the charged crime, it is inadmissible. As stated in Drew:
It is a principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged. Since the likelihood that juries will make such an improper inference is high, courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose.
118 U.S.App. D.C. 11, 15-16,
Generally, two things must be established to avoid application of the presumption of prejudice that attends other crimes evidence. First, the evidence must be offered for a “substantial, legitimate purpose,” including, but not limited to, one of the following issues: (1) motive; (2) intent; (3) absence of mistake or accident; (4) common scheme or plan; or (5) identity. Drew, 118 U.S.App. D.C. at 16,
If there has not been a final adjudication of guilt as to the other crime, our decisions have also required the prosecution to establish, by clear and convincing evidence, that the other crime occurred and that the defendant committed it. Groves v. United States,
2.Purpose for Admission other than Predisposition
We have no difficulty concluding that the trial court could reasonably have concluded that the evidence was not offered to prove predisposition to commit the charged homicide. To begin with, the prosecution stated that it was offering the evidence to prove the principal contested issue in the case, identity, and carefully laid out just why this evidence was integral to proof of identity.
It is possible, of course, to advance a pre-textual purpose for admission of evidence which bears “wholly or primarily” on predisposition, Thompson v. United States,
3. The Evidence was Admissible Pursuant to the Identity Exception
We are also satisfied that the trial court could properly have found the evidence to fall within the identity еxception. The evidence amounted to a crucial link between Johnson and the killing of Carrington. That the same gun was used in both events closely linked the two. The killing of the two boys so short a time after the Carrington murder was additionally probative of the identity of Carring-ton’s killers because it was more likely that the burglars of the apartment would kill the boys in order to silence them if the boys knew the burglars. Thus, the killing of the boys greatly narrowed the class of persons potentially responsible for Carrington’s murder. It is hardly surprising that the government pressed for admission of the evidence, as identity was not merely a genuine issue in the case, but the only real issue.
4. Clear and Convincing Standard Met
Addressing another Drew requirement, the trial court had ample support on the record for its conclusion that there was clear and convincing evidence that the Maryland killings in fact occurred and that Johnson was “connected” to them. See Groves, supra,
5. Probative Value and Danger of Unfair Prejudice
We cannot say that the motions court abused its discretion in finding that the probative value of the evidence exceeded the danger of unfair prejudice.
Two other things connected the two events and thus strongly suggested that Johnson took part in killing Carrington: (1) Carrington’s keys to the apartment were missing after he was murdered, and the apartment was entered without force; and (2) the drugs and gun were stolen by someone who knew where they were kept in the house, knowledge which arguably belonged only to Johnson, Carrington, and Brown (Carrington’s girlfriend). However, as the defense could have argued, the entry of the apartment without force could have been made possible by carelessness in locking the door, and there was even the possibility that the two young boys opened the door to the assailants. In addition, as the defense did argue, people other than Carrington’s killers conceivably could have entered the apartment and stolen the drugs and the gun. Thus, the fact of the burglary alone did not provide an unquestionable link between the two events. In contrast, the use of the .45 at both places showed almost ineontrovertibly that the two events were connected. The use of the gun on the two boys, since they were especially likely to be able to identify Johnson and Void, both of whom knew the boys and had played with them, further tended to prove that Johnson and Void killed Carrington. Unquestionably, a burglar known to the children would have a greater reason to fear ultimate detection than one who was unknown to them. And a burglar afraid of being linked by the children to a murder would have substantially greater incentive to silence them by (another) murder than an “ordinary” burglar. See Robinson v. United States,
As to the danger of unfair prejudice, it must be acknowledged that the killing of two innocent boys to keep them from identifying the intruders is worse than deplorable, and the jury would undoubtedly think ill of Johnson if it became satisfied that he did it. We also recognize the danger that a jury might be anxious to blame someone for this heinous act. But it is not likely that the jury used the Maryland crimes as propensity evidence tending to show that Johnson killed Carring-ton given the unique relationship between the evidence and the lone contested issue, identity. The jury, in a word, would not likely have reached conclusions about Johnson’s proclivity for violence before it was satisfied that he was guilty of the charged crime. Compare Light v. United States,
Further limiting the danger of unfair prejudice arising from the Maryland killings was the fact that other evidence of wrongdoing— trafficking in large amounts of narcotics, a shootout earlier on the same day, and the orchestrated “hit” style killing of Carrington by shots to either side of his head — was to be featured prominently as part of the prosecution and the defense cases, thus perhaps making it inevitable that the jury would know from several sources that it was dealing with some very unsavory events.
Finally, we recognize that the evaluation and weighing of evidence for relevance and potential prejudice is quintessentially a -discretionary function of the trial court, and we owe a great degree of deference to its decision. See Light, supra,
We have reviewed the motions court’s decision to admit the challenged evidence as a Drew issue because the government was proposing the evidence under the Drew identity exception (save for reference to an overt act of a conspiracy), and the motions court ruled in that context. But, having explained why we find no abuse of discretion in the motions court’s Drew ruling, we point out that the Drew strictures were not applicable here because the evidence of the Maryland murders did not fall within the Drew rule at all. Rather, given that the evidence of the Maryland killings was such direct proof of appellant’s guilt of the instant charge that the two occurrences could not be said to be independent of one another, Drew did not apply.
We recognize that it is debatable whether this legal position was adequately preserved by the prosecution as its argument to the motions court that the Maryland acts were direct proof dealt only with an overt act of the conspiracy which was later withdrawn. (Azam) Ali v. United States,
Although it may be convenient simply to plug any evidence of uncharged offenses into a Drew analysis, it is important to remember that this has never been the appropriate course. To explain why it has not been, we begin with Drew itself.
Drew involved an assertion of prejudicial joinder. This led the United States Court of Appeals for the D.C. Circuit, then the highest court of this jurisdiction, to consider whether the evidence of one of the two joined offenses could properly have been used to prove the other joined offense, and occasioned the court’s focus on the policy against admitting evidence that merely proves disposition to commit crime. Drew made it abundantly clear that its prohibition was directed at crimes independent of the crime charged. Thus, the Drew court quoted from McElroy v. United States,
In Miles v. United States,
In (Abdus-Shahid) Ali v. United States,
We later stated unequivocally in King v. United States,
Our cases have repeatedly held that admissibility of this kind of evidence [possession of pistol allegedly used in assault with intent to kill] is based upon a determination of whether it was directly relevant to some issue in the case. We have never held, and do not do so now, that such evidence must meet the standards established by the Drew line of cases. (Citation omitted.).
See generally Edward Imwinkelreid, UNCHARGED MisCONduot Evidenoe (“Imwinkel-reid”) §§ 6.03-.13 (1994). Thus, in Sweet v. United States,
In Thomas v. United States,
Drew evidence is evidence of another crime independent of the crime charged. The evidence from July 16-17 and 28 was not admitted as evidence of another, independent crime. Thus, it was not even arguably admitted for the improper purpose of proving appellant’s bad character or disposition to commit crimes.
Id. at 274 (citation omitted; emphasis in original); see (Abdus-Shahid) Ali, supra.
Likewise, in Lee v. United States,
The Lee statement of the “inextricably intertwined” rule was rooted in Smith v. United States,
A related situation not governed by Drew arises when evidence is offered “to explain the immediate circumstances surrounding the offense charged.” . Green v. United States,
From the foregoing, it is clear that Drew’s strictures do not come into play in every instance in which evidence offered to prove guilt of the charged offense could be offered in support of a prosecution of another crime. Specifically, Drew does not apply where such evidence (1) is direct and substantial proof of the charged crime, (2) is closely intertwined with the evidence of the charged crime, or (3) is necessary to place the charged crime in an understandable context.
In this case then, the evidence of the Maryland murders was admissible quite apart from any Drew exception. The Maryland murders were not independent because the same evidentiary stream ran through them and the charged crime. The same gun was used in both, they occurred close to one another in time — the second occurring in part arguably as a consequence of the first— and they tend to prove one another, for the cogent reason (among others) that the perpetrators of each were known to the two Maryland victims, and for that reason killed them. Thus, the evidence of the Maryland offenses falls into the first of the non -Drew categories described above — direct and substantial proof of Johnson’s guilt of Carrington’s murder.
D. The Balancing Test in General
This case demonstrates the importance of the balancing of probative value against the potential for unfair prejudice that trial judges must perform whenever relevant evidence poses a danger of unfair prejudice. When the Drew rule applies but the proffered evidence falls within one of its exceptions, just as in this case of direct proof not subject to Drew, the trial court must weigh the apparent probative value of the evidence against the unfairly prejudicial effect that it is likely to have, and thereby determine whether to admit it.
In close cases, at least, that determination may be controlled by whether (1) admission is appropriate only where probative value exceeds prejudicial impact or, conversely, (2) admission should be permitted unless prejudicial impact exceeds (or substantially exceeds) probative value. The difference is not merely semantic, as it may spell the difference between admission and exclusion; indeed, the choice we make says much about our system’s confidence in juries and hence its receptivity to evidence that is conceded to be relevant. Cf. Winfield, supra,
In cases where Drew is applicable, we have stated the rule both ways. See, e.g., Campbell, supra,
Several of our opinions have cited FRE 403 as authoritative. See, e.g., Reed v. United States,
Because we announce that we will follow FRE 403, we should take note of its requirement that the danger of unfair prejudice substantially outweigh probative value before relevant evidence may be excluded. While the commentary to the Federal Rules of Evidence and the legislative history of the rules are quite extensive, they do not discuss why the word “substantially” was used. See Gregory Joseph & Stephen Saltzburg, Evidence in America — The Federal Rules in the States § 13.3 at 5 (1987). The “substantially outweighs” approach is apparently the product of the general federal policy promoting the admission of as much relevant evidence as reasonably possible. See Huddleston v. United States,
Federal Rule of Evidence 403, or at least its requirement that the danger of unfair or undue prejudice “substantially” outweigh probative value, has been adopted by at least forty of the states.
Having considered the matter, we have determined to use the formulation set forth in FRE 403, including the word “substantially,” in connection with the admission of evidence generally when it is challenged as “unfairly prejudicial.” Our doing so will further the policy of admitting as much relevant evidence as it is reasonable and fair to include, and will also gain for this jurisdiction the advantage that uniformity with the federal rule and the vast majority of state rules affords for interpretation and application.
We conclude that we should also follow that same policy regarding evidence that is subject to a Drew analysis but qualifies for admission under any of the exceptions to Drew. We recognize that the prevailing view at common law was that the proponent of such evidence had the burden of persuading the trial judge that on balance the probative value outweighed unfair prejudice. See ImwinkelREID, supra, § 8:27. Since the adoption of FRE 403 and FRE 404(b),
E. References to “Other Crimes” Evidence at Trial
At trial before Judge McIntyre, Johnson did not ask the court to reconsider Judge Eilperin’s ruling on the pretrial motion to bar the government from using the evidence of the killings and other activity in Maryland shortly after Carrington’s murder, and evidence relating to Johnson’s possession of handguns before and after that murder. Although the government abandoned all three killings as overt acts of the alleged drug distribution conspiracy, Johnson did not then ask the trial judge to reconsider the pretrial ruling that evidence of the Maryland killings was admissible as direct proof of Johnson’s guilt of the murder of Carrington. Indeed, the trial judge essentially stated in colloquy over a limiting instruction that the use of the same weapon was direct proof of guilt. In reviewing what transpired at trial, we will consider whether the manner in which the government used that evidence at trial was unfairly prejudicial, as Johnson’s counsel asserted at oral argument.
At trial, Johnson’s trial counsel did not object to the manner in which the prosecutor used the evidence of the Maryland occurrences in conducting the examination of witnesses or making opening and closing statements. Nevertheless, the trial judge played a commendable rolе in keeping control of the presentation and thus minimizing any unfair prejudice that this evidence might have produced. The prosecution undertook to prove by circumstantial evidence that Johnson and his severed accomplice, Void, had killed Carrington. Virtually unassailable was the proof that Johnson, Void, and Car-
In its opening statement, the prosecution did not suggest that the Maryland killings demonstrated appellant’s propensity to commit the charged offense. The statement contained only three significant mentions of the Maryland killings. The first two were references to the fact of the shootings and the familial relationship of the two boys and a description of the Maryland murder scene. They were relatively brief, and were dry rather than dramatic. Perhaps the most vivid language employed by the prosecution was a reference to all three shootings on the night in question as “a terrible thing.”
The third statement, which came as the prosecutor explained the reaction of Brown as she came home to find the two boys shot, warrants a closer look:
And in her apartment, I believe her testimony is, she heard a moaning sound, she discovered that the two boys were shot ... her boyfriend’s son and her little brother. She went into her room and she found everything pulled out of her closet. And the police’s [sic] testimony and her testimony will show you it was pulled out down to a spot and laying there was the papers for the gun. The gun was gone and the papers were there.
While the use of the word “moaning” was unnecessary, we note that it was one isolated word in the course of a detailed statement. Further, trial counsel did not object to this reference, either during the opening statement or later at the bench. We are satisfied from our reading of the record that there was nothing significantly objectionable or inflammatory about the oрening statement’s treatment of the Maryland killings.
Nor did the prosecutor focus unduly on the evidence of the Maryland murders during the presentation of its case, which included the testimony of twenty-eight witnesses. It is true that the prosecutor did elicit the fact of the Maryland killings from its first witness. But that witness, Brown, testified over two days and laid out in critical detail the background of the narcotics conspiracy, which was essential to understanding both that charge and linkages between Johnson and Carrington’s murder. As part of Brown’s chronological relation of events, as she described how she arrived home to discover the door to her apartment unlocked, she stated matter-of-factly that when she looked in the boys’ room she found that each had been shot in the head.
Surely, this testimony had some impact, but we note that Brown’s answers appear to reflect, if anything, a cautious word from the prosecutor to avoid being too emotional. We cannot find that the foregoing was unfairly inflammatory. And while the questioning returned briefly to the deaths of the boys at the close of Brown’s direct testimony, those questions were simple and did not produce emotional answers.
As to references to the Maryland killings by other witnesses, we note that they too were purely factual and do not appear to
In contrast to the prosecution’s caution, we note that defense counsel waded right into the evidence of the Maryland killings. Of course, that Johnson chose to use this evidence did not amount to. a waiver of his earlier objection to the admission of any other crimes evidence. (Charles) Jones v. United States,
An early example of the defense’s use of this evidence came during the cross examination of the Maryland detective who described the scene in the apartment. Defense counsel questioned her concerning signs of rigor mortis in one of the boy’s bodies, including signs of “rigidity in the face.” And, when the deputy medical examiner who performed the autopsy on Carrington’s body testified, defense counsel did not hesitate to engage him in an anatomically detailed discussion of the paths of the bullets and just which part of the head braked a particular bullet. When cross-examining yet another evidence technician, defense counsel focused on the question of just how much blood was on the bullet that passed through the brain of one of the boys, and the question of whether it had been cleaned. Defense counsel’s lack of squeamishness was also exhibited by three questions he put to a ballistics expert in near-succession:
Q. Now, if it was a .45 caliber weapon and I was shot [in the head from a short distance away], how far would the bullet travel after it had gone through my head?
[[Image here]]
Q. Okay. Well, let me ask you this. Do you know this. Do you know if a bullet goes through somebody’s head, does it generally have blood on it when it comes out the other side?
% ‡ 5ji # Í-C
Q. So would it also be beyond -your expertise to say whether a bullet that goes through somebody’s head and through the portion of the head where the brain is located, would [it] also be beyond your expertise to say whether you would expect to find brain tissue on that bullet; is that correct?
The defense also declined to enter stipulations that might have kept some of the more clinical testimony from coming before the jury. See, Imwinkelreid, supra, §§ 8:11-12 (defense can limit, or even exclude other crimes evidence by entering stipulations admitting the fact on which the evidence would be admissible); Christophek Mueller & Laird Kirkpatrick, Modern Evidence § 4.4 at 262 (1995). For example, defense counsel declined to stipulate to chain of custody, with the result that the testimony of the medical examiner who removed the bullet from one of the bodies was then made necessary. The trial court tried to encourage the stipulation, telling defense counsel, “[0]nce you bring in a doctor who’s going to testify about two killings out there in Maryland, that’s going to have certainly some [e]ffect on the jury.” Similarly, when the prоsecutor proposed a stipulation to the effect that the Maryland bullets were found in and around the boys’ bodies, defense counsel noted in refusing:
Your Honor, it occurs to me that we can establish all of that through testimony. I*1104 mean, it doesn’t really seem necessary to stipulate to it really. I mean, there are going to be Maryland police officers who were on the scene. They can talk about that and I’m not going to seriously question it, but I don’t think that we need to actually stipulate to it.
Some of the colloquy between court and counsel illustrates the court’s appropriately active effort to reduce the potential impact that any possibly inflammatory material would have on the jury sitting in judgment of Johnson.
The prosecutor touched on the Maryland killings in his summation, saying at one point:
Then you can conclude one of the boys woke up, and the two boys were executed. They would have recognized [appellant and Void], wouldn’t they? Yes. Yes. The same .45 that shot the second bullet into Tyrone Carrington put three bullets in the boys. That’s the point of all that evidence about the three shell casings there lying around the boys, one bullet in the floor where one boy had been, one bullet out of one boy’s ear, one bullet out of one boy. The one who had the one in his ear, another bullet dug out of him in the autopsy in Maryland.
Referring to the “execution” of the two boys may have been unduly dramatic. See Sellars v. United States,
We are not suggesting that defense counsel was ineffective in conducting a defense that focused in part on some of the more disturbing evidence. Rather, we point out defense counsel’s questions and summation to show that this material was important and could be handled in a responsible manner. And we can summarize our review of the
IV.
Johnson also argues that the prosecutor violated Brady v. Maryland,
V.
Accordingly, the judgment on appeal is
Affirmed.
Notes
. Drew v. United States, 118 U.S.App. D.C. 11,
. Brady v. Maryland,
. The motion also sought exclusion of evidence of the burglary of the Maryland apartment and related offenses and of illegal possession of a handgun both before and after the murder of Carrington. On appeal, Johnson’s counsel advises us that Johnson still takes that position. Counsel, however, advances no argument concerning the burglary and related offenses. At oral argument counsel concentrated almost entirely on the killings and, accordingly, we do also.
. One of the types of other crimes evidence admitted under the identity exception relates to the so-called "signature” crime. In "signature” crime situations, the prosecution must establish that "there are enough points of similarity in the combination of circumstances surrounding the two crimes to create a reasonable probability that the same person committed each.” Groves, supra,
. For examples of inadequate proffers, see Campbell v. United States,
. Cf. Winfield, v. United States,
. In co-defendant Void’s case, the same motions judge ruled that although the jury could learn about much of what happened in Maryland, including that the same .45 was fired there, it could not be told that the two boys were murdered. The judge reasoned that since the nine millimeter pistol was found on Johnson but not on Void, the evidence connecting Void to the apartment was weaker, a consideration in determining the relative probativity of the other crimes evidence. Void,
. On the general topic of the factors to be weighed in concluding whether to admit such evidence, one treatise states:
In deciding whether the danger of unfair prejudice and the like substantially outweighs the incremental probative value, a variety of matters must be considered, including the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility. John Strong, I McCormick on Evidence § 190 (4th ed.1992). (Emphasis added.)
We add that in reviewing this ruling by the trial court, we are not applying the criterion of Federal Rule of Evidence 403, discussed and approved below, that "evidence [otherwise relevant] may be excluded if its probative value, is substantially outweighed by the danger of unfair prejudice,” but are reviewing it under the test the trial court used. As it passes that test, it necessarily passes the test of FRE 403. It is not necessary to discuss whether our approval of the FRE 403 policy discussed below is retroactive, as that issue was not briefed and might never be presented to this court.
. At trial and on appeal, Johnson raised objection to the admission of certain other evidence as other crimes evidence. See note 3, supra. As Johnson’s counsel concedes, the admission of evidence of the burglary of the Maryland apartment and the theft committed there was not an abuse of discretion, as it was highly probative of Johnson’s participation in the entire chain of events surrounding Carrington's murder and was not as potentially prejudicial as the evidence of the killing of the boys. The admission of the evidence of Johnson’s possession of the nine millimeter handgun six days after Carrington’s murder was also highly probative. The gun had been stolen from Brown’s apartment during the burglary and that evidence tied Johnson to the burglary. Brown’s testimony that several weeks before Carrington’s murder she had seen Johnson cleaning a handgun that looked like a photograph of a .38 special Smith and Wesson was not as strongly probative because that particular type of weapon was not used in any of the killings. According to еxpert testimony, however, a .38 short-barrel Colt was one of the weapons that
. If evidence is within the Drew rule, the trial court must generally give a limiting instruction, as it did here. See, e.g., Jones v. United States,
. We note that the evidence of the Maryland murders bears an immediate relationship to the charged offenses, both temporally and causally, that is especially strong — stronger, for example, than the prior possession of a weapon similar to the murder weapon in (Abdus-Shahid) Ali, supra. This circumstance weighs heavily in the balance against prejudice.
. In cases not involving Drew issues this court has said at various times that probative value must outweigh prejudice in order to permit admission, see, e.g., Pittman v. United States,
. Federal Rule of Evidence 403 provides in its entirety:
Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
. Weinstein’s Evidence, 403: 91-103; Ala.R.Evid. 403; Ariz.R.Evid. 403; Ark.R.Evid. 403; Cal.Evid. Code § 352; Colo.R.Evid. 403; Del.R.Evid. 403; Fla.Stat.Ann. § 90.403; Haw.R.Evid. 403; Idaho R.Evid. 403; Ind.R.Evid. 403; Iowa R.Evid. 403; Ky.R. Evid. 403; La.R.Evid. 403; Md.R. 5-403; Me.R.Evid. 403; Mich.R.Evid. 403; Minn.R.Evid. 403; Miss.R.Evid. 403; Mont.R.Evid. 403; Neb. Rev.Stat. § 27-403; N.H. R. Evid. 403; N.J.R.Evid. 403; N.M.R.Evid. 11-403; Nev.Rev.Stat. §48.035(1); N.C.R.Evid. 403; N.D.R.Evid. 403; Ohio R.Evid. 403; 12 Okl.St.Ann. § 2403; Or. R.Evid. 403; R.I.R.Evid. 403; S.C.R.Evid. 403; S.D.Comp.Laws Ann. § 19-12-3; Tenn.R.Evid. 403; TexR.Crim.Evid. 403; Utah R.Evid. 403; Vt.R.Evid. 403; Wash.R.Evid. 403; W.Va.R.Evid. 403; Wis. StatAnn. § 904.03; and Wyo.R.Evid. 403; see P.R.
. See Commentary to Alaska R.Evid. 403, quoted in Weinstein's Evidence, 403: 96-97.
. One commentator has observed that “it is not readily apparent that Alaska’s omission of 'substantially' has had any practical impact.” Evidence in America, supra, § 13.3 at 5; see Andrew Dolan, Rule 403: The Prejudice Rule in Evidence, 49 So.Calí.Rev. 220, 236 (1976).
. FRE 404(b) provides in pertinent part:
(b) Other crimes, wrongs, or acts. Evidеnce of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....
The quoted language of FRE 404(b) is consistent with District of Columbia law. We observe that we are not adopting in this case the policy of requiring the prosecutor to give advance notice of intent to use other crimes evidence which was included in FRE 404(b) by amendment in 1991. But we also observe that even without a rule or policy requiring such notice, the trial court has the discretion to require parties to disclose in advance their intention to use evidence of other crimes, and in any event a prosecutor may find it prudent to afford such notice. Such notice may obviate any possible claim of unfair surprise and may avoid a request for continuance. See Ford v. United States,
.The Supreme Court held unanimously in Hud-dleston that a trial court need not make a preliminary finding that the government had proved by a preponderance of the evidence or by clear and convincing evidence that the defendant had committed the other bad act or crime in question. Instead, the Supreme Court held that similar acts evidence should be admitted, subject to a probative/prejudicial balancing, "if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act.” Huddleston, supra,
We do not determine here whether the above-described holding of Huddleston should be followed in this jurisdiction, cf. Daniels v. United States,
. FRE 403 uses the language "may be excluded," but we use "should” in our formulation here in order to inform the trial court’s exercise of discretion in a Drew situation.
. Even where other crimes evidence may properly be found to be admissible, we may be called upon to determine whether there was error as a result of its manner of presentation. See Hill v. United States,
. It was the prosecutor who first suggested the need for a limiting instruction regarding the evidence admitted under a Drew exception. The court insisted that defense counsel draft the instruction with specificity, noting, "I don't want to tell that jury something that would harm your client.” Thus, while it can be argued that the instruction should have explicitly told the jury not to use the evidence as proof of propensity, instead of telling the jury that it could use the evidence only on the issue of identity, we cannot say the court erred in instructing in accordance with the request of the defense. See (George) Jones v. United States, 625 A.2d 281, 285 (D.C.1993) (limiting instructions risk emphasizing improper matters, such that defense may not want them). Further, defense counsel asked the court to include the same instruction in its final charge, and the court largely did so.
. THE COURT: Let me see the pictures. You [the prosecutor] may not be able to get those in.
[DEFENSE COUNSEL]: Your Honor, I don't think I’m going to challenge that anyway, the testimony of the officers as to where the bullets were found and so on.
THE COURT: You can't challenge that.
[DEFENSE COUNSEL]: No.
THE COURT: There’s nothing to challenge on that.
[DEFENSE COUNSEL]: Right.
THE COURT: But you may be able to challenge these pictures. This is important. The important thing is that [the prosecution] get the testimony in that these are the same shells or the same bullets that were fired from this weapon that killed the deceased in the District of Columbia.
[THE PROSECUTOR]: That’s right. I've set aside a good number of the rest of the pictures that show a lot more of the bodies.
THE COURT: Well, let me see what you got there.
[THE PROSECUTOR]: This is just coming into the bedroom where the boys were. That’s the door coming in.
THE COURT: That's not important to this trial. I don’t think I'm going to allow those photos, but you can certainly bring in the testimony.
. The dissent appends a portion of the vacated panel opinion in this case to make its point that the prosecution focussed unduly on the Maryland murders. That excerpt, however, conveys an erroneous impression by selectively quoting a few parts of a record of over 1100 pages. It fails to convey the impression that one cannot help but gain upon reading in their entirety all parts of the record, especially the government’s opening statement and closing arguments, that the government did not call attention to those murders in a disproportionate or inappropriate way. Moreover, by quoting from our opinion in Williams v. United States,
. As to appellant’s argument that the trial court erroneously admitted two co-conspirator statements, we find it to be without merit. See Butler v. United States,
Concurrence Opinion
with whom TERRY, Associate Judge, joins, concurring:
I join the opinion of the court but write separately to express the view that because we are today adopting the balancing test of the Federal Rules of Evidence, Fed.R.Evid. 403, for so-called “other crimes” evidence, we should also adopt, in its entirety, Fed.R.Evid. 404(b), the underlying rule governing the
Rule 404(b) provides:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
As the en banc court today acknowledges, the portion of Rule 404(b) appearing before the word “provided” is “consistent with District of Columbia law.” Ante at 1100, note 17.
It is also significant that we have never expressed, in so many words, the reason that a showing by clear and convincing evidence is either necessary or appropriate. See also Daniels, supra,
With respect to the provision in Rule 404(b) requiring the prosecutor to provide advance notice of its intent to use such evidence, there are several reasons why we should not hesitate to adopt that practice. First, speaking entirely from my own experience as a trial judge in the Superior Court from 1981 to 1991, I found that requiring advance notice of “other crimes” evidence improved both the court’s and the parties’ ability to efficiently resolve the cases affected. For example, before an advance notice
Second, although I have not made a count, I have the impression that most Superior Court judges currently require advance notice so that imposing such requirement would not come as a major change in practice. See ante note 17. In Ford, supra,
APPENDIX
In Huddleston v. United States,
I. Courts in sixteen states have explicitly or implicitly adopted the Huddleston rule on admissibility of other crimes evidence: State v. Barr,
II. Three states acknowledged Huddle-ston, but adopted a “preponderance of evidence” admissibility standard: People v. Garner,
III. Courts in five states either rejected Huddleston for all purposes, or under a specified circumstance, or because there was contrary higher court precedent that predated Huddleston: State v. Cohen,
.We have specifically adopted the following Federal Rules of Evidence: 405(a), 406, 703, 705, 801(d)(2)(E), and 804(b)(3). See Rogers v. United States,
. Our "other crimes” admissibility rule traces its beginnings to Drew, supra,
. See Daniels v. United States,
. The majority is understandably reluctant to adopt Rule 404(b) at this time because the issue has not been briefed by the parties. I agree that courts generally should not decide issues that have not been briefed, however, I would make an exception in this instance for two reasons. First, I am not suggesting that we adopt some untested principle that has not been subjected to the intense scrutiny, by the bench and bar, that the provisions of the Federal Rules of Evidence have undergone. Acceptance of those rules is widespread, and, wherе we have adopted specific provisions of the Federal Rules of Evidence in
. In that regard, compare the language of Fed. R.Evid. 404(b) with the quote from Drew set forth in note 2 supra.
. United States v. Bussey, 139 U.S.App. D.C. 268, 273 n. 23,
. See Ford v. United States, 647 A.2d 1181, 1185 (D.C.1994).
Concurrence Opinion
concurring:
I agree that Johnson’s conviction should be affirmed, but on a narrower ground than the majority opinion. First, I agree with Judge Ferren’s dissent that the evidence of the boys’ murders in Maryland — as opposed to evidence that the same gun that killed Car-rington was also discharged in the Maryland apartment, and that a gun stolen from that apartment was found on Johnson — was of marginal relevance to the identity of Car-rington’s murderer, and that some of the repeated, detailed references to the boys’ murder were prejudicial. Nonetheless, once the judge decided that the evidence was of relevance to the identity of Carrington’s murderer and overruled the defense’s objection that the evidence was inadmissible in toto, the defense took no action, either by agreeing to stipulate as to the identity of the bullets or by proposing that the evidence be sanitized, to avoid the prejudice. Further, and of prime importance to me, the motions judge preliminarily found, by clear and convincing evidence, that Johnson had committed the boys’ murders; the defense was not unfairly surprised because it had been advised of the government’s intention to use evidence of the boys’ murders; the trial judge twice specifically instructed the jury on the purpose for which evidence of the boys’ murders was admitted, as requested by the defense; and the trial judge concluded that the probative value of the evidence outweighed its potential for unfair prejudice. In the parlance of the majority opinion, the trial court did not abuse its discretion in admitting the evidence as an exception to the Drew rule. Thus, it is not necessary to decide as an alternative ground that the evidence was also admissible because, as “direct and substantial proof of the charged crimes” in this case, see ante at 1101, it was not Drew evidence even though it also would support prosecution of another crime.
In any event, I find the Drew/non-Drew distinction less than helpful. The issue, always, is whether evidence of uncharged conduct is being introduced to prove guilt by propensity or to obtain a conviction by means other than through evidence of the charged offense. If it is, as the majority notes, the evidence is inadmissible. Ante at 1104. If it is not offered for that purpose or is not likely to be used by the jury in that impermissible way, the evidence may be admissible. Then, because we are rightly concerned that evidence of uncharged conduct nonetheless may influence and confuse the jury with respect to the charged offense, we focus on what safeguards are appropriate to protect against unfair prejudice: Is the evidence necessary, or can the same fact be proven otherwise? Should its introduction be delayed to allow for the possibility that the course of the trial may obviate its necessity? How certain is it that the uncharged conduct was committed by the defendant? Does the jury understand the proper purpose of the evidence? This pragmatic approach is preferable to a rule of presumptive inclusion of “non-Drew” evidence or presumptive exclusion of “Drew” evidence. This is not an area for presumptions or formulaic labeling as “Drew” or “non-Drew,” but for careful balancing by the trial court of the probativeness of the evidence against the potential for prejudice, including consideration of measures available, to mitigate prejudice.
Notwithstanding my views on the merits of how we should consider the admission of evidence of uncharged conduct, however, we should not in this case change our law concerning the presumption that has been developеd in our caselaw with respect to the balancing of probative value versus prejudice to determine the admissibility of evidence of uncharged conduct. That is, unfortunately, what the majority has done by adopting the
That change is unwarranted. Resolution of this case does not require any such change in our law, as neither the majority nor I believe that the trial court abused its discretion in determining that the evidence was admissible without need of a tipping of the scales in favor of admission. Morеover, the government has not proposed that we adopt FRE 403 and neither party has addressed whether the policy of the Federal Rules of Evidence with respect to the balancing of probative value versus unfair prejudice should be applied to evidence of uncharged conduct. Finally, as Judge King’s concurrence and Judge Ferren’s dissent note, by adopting the balancing test of FRE 403 in the context of evidence of uncharged conduct, yet not adopting FRE 404(b), the majority has gone only part-way toward adoption of the Federal Rules of Evidence that concern admissibility of uncharged conduct, without considering the balance struck in those rules between admissibility thresholds and safeguards. This partial adoption of the relevant federal rules also undermines an important reason for following the rules, the benefit of federal and state court interpretations of those rules. I do not think we should adopt FRE 404(b) in this case for the same reason that we should not adopt only part of the federal rules relevant to evidence of uncharged conduct: we should not change our law in such a sensitive area without even having had the benefit of briefing on the issue.
. I would expect that under the majority's approach trial courts would continue to be keenly aware (if not presume) that evidence of uncharged conduct — even if it comes under a Drew exception — can be very prejudicial.
Dissenting Opinion
dissenting:
The result of the decision today is to permit the prosecutor to charge Johnson with one murder, in the District of Columbia, but also — in order to help seal the case against him here — to present evidence to the jury that Johnson committed two other murders (for which there had not been convictions) in Maryland. In doing so, the court today upsets the fair administration of criminal justice in the District of Columbia, not only by reaching the result it does in this case but also by altering the long-established probative/prejudicial balancing test for admissibili
I.
I cannot help believing that the result here would be different if the majority had not adopted Fed.R.Evid. 403 — authorizing admission of “relevant” evidence unless the trial judge determines that “its probative value is substantially outweighed by the dаnger of unfair prejudice” — as the appropriate balancing test for a trial judge to apply when considering the admissibility of “other crimes” evidence.
A.
The majority says that the portion of Fed. R.Evid. 404(b) italicized below is “consistent with District of Columbia law.” Ante at 1100 n. 17. The federal rule provides in full:
*1111 Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show actions in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
B.
The defects in the majority’s approach are serious. First, by only partially adopting the federal approach, the majority withholds an important protection. Fed.R.Evid. 404(b)— in the part that the majority declines to adopt — expressly conditions admission of other crimes evidence on a requirement that,
upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Fed.R.Evid. 404(b) (1991 amendment). The majority rejects this requirement without explaining why, see ante at 1100 n. 17, and thereby denies defendants a critical right to notice that the federal rules provide to compensate, at least in part, for a more relaxed approach to admissibility under Fed.R.Evid. 403/404(b) than our Drew, exclusionary approach has allowed. See Ford v. United States,
Second, the majority opinion does not otherwise make clear exactly what the new rule encompasses. Some federal circuits, for example, define the relevance of other crimes evidence rather narrowly under Fed.R.Evid. 404(b),
Third, under the new regime, other crimes evidence will now be admissible unless the danger of unfair prejudice “substantially” outweighs probative value, a formulation that allows admission of evidence that to some extent is more prejudicial to the defendant than of probative value to the government.
Fourth, the majority opinion purports to retain Drew’s traditional requirement that “the prosecutor has the burden of showing that the evidence falls within one or more of the recognized exceptions.” Thompson,
In the first place, the government’s burden of persuasion is substantially reduced because, contrary to Drew’s “exclusionary” presumption, other crimes evidence is presumptively admissible under Fed.R.Evid.
The majority does not directly dispute this analysis. My colleagues no longer confirm this court’s long-standing rule that other crimes evidence is “presumptively inadmissible,” Robinson v. United States, supra note 3,
The majority, in fact, acknowledges the potential significance of the change it now adopts: a likely increase in admissibility of other crimes еvidence. According to the majority’s articulation of the difference between the exclusionary (Drew) and inclusionary (federal) approaches, respectively:
In close cases, at least, [the other crimes evidence] determination may be controlled by whether (1) admission is appropriate only where probative value exceeds prejudicial impact [Drew] or, conversely, (2) admission should be permitted unless prejudicial impact exceeds (or substantially exceeds) probative value [Rule 403], The difference is not merely semantic, as it may spell the difference between admission and exclusion.
Ante at 1098 (citation omitted) (emphasis added). The majority, therefore, admittedly makes it inherently easier under the new 403/404(b) approach than under Drew for the government to carry its burden when proffering other crimes evidence. See supra note 11.
C.
For three reasons, I very much disagree with the court’s shift to the federal formulation. First, as elaborated above, the majority’s new rule literally permits a judge to admit other crimes evidence that is more prejudicial to the defendant than of probative value to the government. Indeed, because the majority merely says the trial court “should” exclude other crimes evidence if the danger of unfair prejudice substantially outweighs its probative value, ante at 1104 & n. 19, my colleagues appear to leave the trial
Even on the assumption that the majority has adopted a slightly modified Fed.R.Evid. 403 by substituting “should” for “may,” see supra note 11, I cannot accept the result. I agree, of course, with the majority’s implicit admission that a pure Fed.R.Evid. 403 approach to other crimes evidence would be too radical because it literally would allow admission of other crimes evidence with prejudicial impact that substantially outweighs probative value. But I am deeply concerned about a majority decision that, while recognizing the mischief possible under Fed.R.Evid. 403 as written, is willing nonetheless to modify the rule only very slightly, leaving the trial court with permission to admit other crimes evidence with prejudicial impact that exceeds its probative value unless the difference is “substantial.” In all its many pages the majority opinion never really tells us why. As best I can tell, thе majority keeps the word “substantially” in the rule simply because the federal rules are commonly followed and because uniformity, abstractly, is a good idea. But the uniformity rationale melts away once the majority begins to fiddle with the rule’s text by eliminating the word “may,” see supra note 11, (just as it has severed and discarded part of Fed.R.Evid. 404(b)). Having crossed the Rubicon by rejecting parts of two federal rules, why does the majority accept, rather than excise, the word “substantially” without giving a clear, persuasive reason for doing so?
Second, by substituting the federal “inclu-sionary” rule for Drew’s common law “exclusionary” rule, this court’s decision today is flawed in other ways that leave a reader guessing about the impact: (1) the opinion leaves entirely unclear how the evidentiary burden of persuasion under the federal “in-clusionary rule” can nonetheless remain — as it purportedly does — on the government as under Drew; (2) the majority inexplicably declines to adopt important protections that the omitted language of Fed.R.Evid. 404(b) provides, as well as interpretations that various federal courts have supplied, to compensate for liberalized admissibility under the federal rules. Accordingly, the majority’s approach is only a partially formulated, and thus insufficiently explicated, change in our longstanding, workable rule.
Third — as this point bears special emphasis — the government has not argued for this change. There is not one citation to Fed. R.Evid. 403 or 404(b) in the prosecutor’s brief, and the court has not sought supplemental briefing. So why is this court on such a self-generated frolic, unaided by the parties’ views? Why has this court simply decided on its own to make a profound change in the law, without asking for comments by the government and the accused, as well as for amicus curiae participation by the Public Defender Service?
In sum, by applying a modified Fed. R.Evid. 403 to permit admission of other crimes evidence unless “substantially outweighed by the danger of unfair prejudice”; by purporting to keep the burden of persuasion on the government while significantly lowering it to a point where the heavier burden is shifted to the defendant; by embracing one part and omitting another part of Fed.R.Evid. 404(b); by failing to discuss, let alone resolve, what critical judicial interprеtations do and do not apply; and by declining to invite any participation whatsoever by the government and the defense bar to help the court understand all the implications of what it is doing; the majority invites conflicting interpretations of today’s en bane opinion, as well as extensive, costly, and time-consuming legal disputes as litigants struggle to understand and shape the court’s new rules pertaining to other crimes evidence.
The majority’s new approach does not reflect a principled change. It represents an unbalanced, inequitable move away from a longstanding, fair and workable rule for admission of other crimes evidence. The new formulation is a verbal invitation for Superior Court judges to relax the barriers against admissibility, which have now become rebut-table by a lesser showing: that prejudicial impact does not “substantially” outweigh probative value. I believe that any such shift increases the likelihood that highly prejudicial evidence of criminal propensity will be spread before the jury.
II.
With all this said, I believe even the majority’s newly adopted test for exclusion of other crimes evidence is met here. The evidence from Crystal Brown’s Maryland Glassmanor Drive apartment was important to the government’s case because that apartment allegedly was the “production center,” ante at 1091, for the drug conspiracy with which Johnson was charged; because .45 caliber bullets and shell casings were found there which expert testimony linked to Carring-ton’s murder; and because a week after Car-rington’s murder, the police found on Johnson a 9mm. pistol which had been stolen from the apartment that same night. In short, this evidence tended to prove that very soon after Carrington had been killed, Johnson had been in the apartment where the police later discovered evidence of one of the guns that killed Carrington. I have no problem with admission of this evidence under either Drew or the Fed.R.Evid. 403/404(b) identity exception, as Judge Eilperin permitted in the separate trial of Johnson’s confederate,
I do find erroneous, however, Judge Eilpe-rin’s admission in Johnson’s case of the additional evidence that the two young boys in Brown’s care had been murdered in the apartment. In Void’s trial, the judge ruled that such evidence was more prejudicial than probative. The judge observed, moreover, that the non-murder evidence admissible from the Maryland apartment against Void was even stronger, i.e., more probative, against Johnson because of Johnson’s direct link to the apartment through the stolen 9mm. gun the police had found on him. Id. at 381-82 n. 15. This observation accordingly made clear that any additional evidence from the Maryland scene explicitly confirming one or more “murders” would have been even less necessary to the government’s case against Johnson than against Void. Put another way, given the admissibility of the powerful burglary, guns, and shell casings evidence from the apartment, any probative value from adding the explicit “murder” evidence in Maryland, in order to prove the identity of Carrington’s killer, was marginal — especially in the Johnson case — when compared to the highly inflammatory, prejudicial impact of evidence that two small boys had been murdered in the apartment. See Willcher v. United States,
Although it has “no difficulty,” ante at 1093, concluding that the Maryland murder evidence was offered for a proper purpose, the en banc majority apparently finds it much harder to explain why it was not an abuse of discretion for the trial court to conclude that the prejudicial impact of the Maryland murder evidence did not substantially outweigh the probative value. The majority works hard to bolster the probative value and minimize the prejudice of the Maryland murder evidence by explaining what the defense could have argued and how the jury likely interpreted the evidence. See ante at 1094-1096. Judge Belson stresses that, in addition to the burglary evidence, “the use of the .45 at both places [Carring-ton’s murder scene and the Maryland apartment] showed almost incontrovertibly that the two events were connected.” Ante at 1094. How true! And how easily that connection could have been satisfied entirely, as in Void, by testimony that .45 caliber bullets and shell casings, linked by expert testimony to the gun that killed Carrington, had been found in the Maryland apartment.
This, to say the least, is a very strained basis for admitting inflammatory child-murder evidence. In the first place, the testimony at trial suggested that the boys were killed in their sleep; there wаs no evidence supporting the idea that the boys ever saw the burglars. Furthermore, even if the boys did see the burglars, or the burglars feared the boys would wake up and see them, it is
III.
There can be no question — as Void’s conviction itself demonstrates — that the government’s case did not depend in any way on the jury’s learning that the expended .45 caliber bullets from the gun that killed Carrington, found in the Maryland apartment where Johnson was shown to have been present, were found in the bodies of two sleeping boys. Moreover, of considerable independent significance, the jury did not merely learn of this bare fact; the jury learned about it over and over and over and over and over and over and over again, in gruesome detail, as though Johnson also was on trial for the murders of two young boys in Maryland. Even if I did not believe the initial admission of the Maryland murders evidence was erroneous, I would order reversal of Johnson’s convictions because of the excessive, inflammatory, and thus entirely inappropriate use of the Maryland murder evidence throughout the trial. See Jones v. United States,
I cannot accept the majority’s insistence that the government did not focus unduly on the Maryland murders. See ante at 1101— 1103. I am satisfied that the prosecutor’s repeated, graphic references to the boys’ murders must have diverted the jurors’ attention from the only murder case they were charged with deciding: Tyrone Carrington’s. The prejudice from this three-murder trial to achieve a one-murder conviction was palpable, as Judge Sullivan ably demonstrated in Part V of his now-vacated opinion for the division, which I set forth as an Appendix.
The majority faults defense counsel for making the situation worse (1) by failing to object to the way the prosecutor used the Maryland murder evidence in examining witnesses and (2) by cross-examining witnesses about that evidence. This argument overlooks, once again, that defense counsel had objected to all such evidence; that once the Maryland murders were in evidence, counsel had to do with that evidence what seemed best suited to the case at the time; and that the trial court had the ultimate, continuing responsibility, once alerted to the problem, to keep overly prejudicial other crimes evidence out of the case. See Jones,
[[Image here]]
Judge Eilperin had it right in the Void case. The judge, and this court, have it wrong in this case, where the Maryland apartment evidence against Johnson — without the murder evidence — was stronger even than it was against Void. I see the majority in this case moving as a juggernaut not only sustaining erroneously admitted “other murders” evidence against Johnson but also wiping away, without the government’s even asking for it, a time-honored, balanced approach to admitting other crimes evidence only when the government can show it is demonstrably more probative than prejudicial. The majority now, in effect, has lowered the threshold of admissibility, which will be increasingly harder for the accused to defend, especially because probative value now must be “substantially” outweighed by prejudicial impact. I fear this is a subtle, but powerful, invitation for prosecutors to demonstrate the defendant’s guilt, at least in part, on the basis of criminal propensity evidence — a proposition that this court has heretofore held to be inconsistent with the presumption of innocence. See Thompson,
APPENDIX
(From Judge Sullivan’s opinion for the division)
V.
At trial, the prejudicial effect of the evidence was further compounded by the amount of evidence presented on the two boys’ murders. Evidence of the shootings permeated the trial from the government’s opening statement to closing arguments. In the prosecutor’s opening statement, he revealed that a bullet exited one boy’s ear and that one boy was shot once and the other boy twice. He also stated during opening statement that when Crystal Brown returned to her apartment, she heard a moaning sound, thereafter discovering that her boyfriend’s son and her younger brother had been shot. This court has recognized the danger of references to other crimes evidence during opening statements. Day v. United States,
Further, during the prosecutor’s opening statement and early in the government’s case-in-chief, a stream of references to the two boys’ murders focused the jury on the issue of whether appellant was a child killer as well as being a drug dealer and an alleged triggerman in the death of Tyrone Carring-ton. After opening statements, the government called Crystal Brown as its first witness, the woman who in one tragic evening, lost her boyfriend, her boyfriend’s son, and her younger brother. Though she testified at length about the drug operation in which she, Carrington, Void, and appellant were involved, she also testified about specific aspects of the boys’ murders and the break-in at her apartment. She discussed how, on the night of the murders, she had given the boys explicit instructions not to open the door for anyone and how she had tested them on this instruction in the past by appearing to leave and then returning to the door. She described the horrible scene she discovered upon returning to her apartment, finding Carrington’s son Carlos and her brother Calvin both shot in the head, with a gun lying on the floor in front of them. She testified that she did not try to hide the bag of cocaine in her dresser because her “first priority was to get some help for the kids.” She also stated that neither appellant nor Bruce Void attended the funerals or the wakes of the two boys, even though both men knew the boys and had played with them in the past. The government concluded its direct examination of Crystal Brown as follows:
Q. Ms. Brown, what happened to Carlos Carrington?
A. He was already dead when I got there.
*1120 Q. And what happened to your brother, Calvin Moore, III?
A. He was pronounced dead about two days later.
MR. FRIEDMAN: I have no further questions.
THE COURT: All right. [L]et me give the jury a five-minute recess before we start the cross examination.
References to the boys’ murders continued throughout the trial. The Prince George’s County detective who responded to the scene of the boys’ murders testified on direct examination by the prosecutor as follows:
Q. Now, were any — Were there any bodies there when you got there?
A. There was one.
Q. And who was that, if you know?
A Carlos Carrington.
Q. How old is he?
A. I believe Carlos is 13 years old.
Q. Where was he?
A Laying on a bedroom floor wrapped in a blanket pulled over his head.
Q. And was he dead or alive?
A. He was dead.
Q. Was the other boy dead when you arrived?
A No. When I had arrived he had already been transported to the hospital. He was still alive at the time he was first found.
Later in the trial, another detective who was present during Carlos Carrington’s autopsy testified regarding the bullet recovered from the skull of Carlos Carrington and how the bullet was marked with the victim’s initials for identification purposes. Following that detective’s testimony, the government called the evidence teсhnician who retrieved the shell casings from the scene of the boys’ murders:
Q. The one that was lying there, can you just briefly describe for the jury what you saw?
A. The young black male was lying there with a pillow that appeared to be folded over the top of his head and also had a blanket that was covering the rest of his body.
Q. Was there any sign of shots fired?
A. It appeared to be two bullet holes in the top of the pillow that was covering the left side of his face and there’s also some evidence of blood coming out of the pillow itself.
% $ # H* H* H*
Q. Did you find any sign of shots fired, any bullets there?
A. Yes, I did. I located three .45 caliber shell casings. Two of them were very close to the bloody area, blood spots, and one was just a short distance away towards the closet area, as I indicated with this line here (pointing).
Q. And did you find any slugs, any bullets?
A. Yes, I did. When we removed the pillow from the young man’s face and attempted to move him, we observed a large caliber bullet that was alongside his right ear in between the pillow and his face. And the second large caliber bullet was under the bloody — spots of blood areas, actually down underneath the carpet. I had to cut the carpet out, a square, and pull the carpet back and the bullet was lodged in the wooden floor.
The government also elicited testimony during its case-in-chief to the effect that one child could have awakened only to have been shot in the head immediately thereafter. In the government’s closing argument, the prosecutor stated:
Then you can conclude that one of the boys woke up, and the two boys were executed. They would have recognized William and Bruce, wouldn’t they? Yes. Yes. The same .45 that shot the second bullet into Tyrone Carrington put three bullets into the boys. That’s the point of all that evidence about the three shell casings there lying around the boys, one bullet out of one boy’s ear, one bullet out of one boy. The one who had the one in his ear, another bullet dug out of him in the autopsy in Maryland.
The government’s pervasive references to the boys’ deaths placed the forbidden issue of
Though jurors are presumed to follow the instructions administered to them, the admission of other crimes evidence is always problematic because “it is difficult, if not at times practically impossible, to avoid its use as predisposition evidence.” Groves, supra,
. Fed.R.Evid. 403 provides in full:
Althоugh relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
. Drew v. United States, 118 U.S.App. D.C. 11, 16,
. Robinson v. United States,
. See, e.g., King v. United States,
. See Drew, supra note 2, 118 U.S.App. D.C. at 16,
. In Huddleston v. United States,
. See United States v. Mora,
. See Huddleston,
. See United States v. Birch,
. See United States v. Arambula-Ruiz,
. Fed.R.Evid. 403 says that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Supra note 1 (emphasis added). The federal rule, therefore, apparently gives the trial court discretion to admit evidence even when prejudice substantially outweighs probative value. Recognizing this possibility, the majority backs away from a pure Fed.R.Evid. 403 approach. My colleagues substitute "should” for "may” in Fed.R.Evid. 403 and thus tell trial courts that other crimes evidence "should be excluded” if probative value "is substantially outweighed” by the danger of unfair prejudice.
It is unclear from this change of language whether the majority thinks it is putting a strict limitation on the application of Fed.R.Evid. 403 to other crimes evidence or not; “should” is an advisory word, without the mandatory impact of “shall” or "must." If the majority believes it is not adding a strict limitation to Fed.R.Evid. 403, then it is massively changing the present other crimes evidence rule in favor of allowing admission of evidence having prejudicial impact that substantially outweighs probative value. If, on the other hand, the majority believes it is imposing a limitation — i.e., adopting a special "other crimes Fed.R.Evid. 403” or a "Fed.R.Evid. modified” by substituting "should” for "may” — then the majority implicitly acknowledges its willingness to modify the federal rule to meet local needs, and we now have a new, unique rule— Fed.R.Evid. 403 (modified)/404(b) (partial) — to control admission of other crimes evidence.
. See Groves v. United States, 564 A.2d 372, 375 n. 5 (D.C. 1989) ("Rule 404(b)’s policy of presumed admissibility differs significantly from this court’s approach to the admissibility of other crimes evidence”); Thompson,
. See United States v. Culver,
. See supra note 11 (comparing majority's substitution of the word "should” for "may” in Fed.R.Evid. 403 when the trial court considers admission of other crimes evidence).
. Judge Belson comfortably cites the fact that a majority of the states have taken the federal route. See ante at 1099-1100 & n. 14. This in itself does not say whether the states abandoned a comprehensive, workable jurisprudence or merely adopted the federal rule for convenience; it does not indicate whether the states adopted Fed.R.Evid. 404(b) in whole or in part; it does not demonstrate whether the states have adopted interpretive protections that may narrow the range of admissibility; and it does not report whether the federal rule was adopted by the court or imposed by the legislature. The majority, therefore, cites companion states without offering assurance that this court is doing what others have done.
.The majority purports merely to "clarify,” not change, the probative value/prejudicial impact analysis applicable to other crimes evidence. See ante at 1099. It then cites "as authoritative,” ante at 1099, cases referring to Fed.R.Evid. 403 only as it concerns admission of facts and data underlying expert testimony, Reed v. United States,
In any event, however one should characterize what the court is doing today, the court acknowledges that the implications are significant. See ante at 1098-1099. The majority appears to recognize, moreover, that it should not act precipitously, without briefing and argument, when it considers, but rejects, Judge King’s proposal to adopt the primary rule of Huddleston, supra note 6, interpreting Fed.R.Evid. 404(b) (trial court need not make preliminary finding that similar act occurred; evidence only must be sufficient to allow jury to find, by preponderance of evidence, that similar act occurred). See ante at 1100 n. 18.
. One salutary feature of the majority opinion, as I see it, is in its indication that trial courts will now be accountable for giving special cautionary instructions limiting use of non-Drew other crimes evidence — see, e.g., Toliver v. United States,
. The majority apparently would require defense counsel not only to object to admission of other crimes evidence but also, as a fallback, to suggest how it should be sanitized for admission — some pieces in, other pieces out — if the court denies the motion to exclude it altogether. See ante at 1094 n. 6. I cannot agree; a blanket objection to admission of various related items of other crimes evidence should be sufficient to preserve a claim of error with respect to any piece of it. Cf. Hill v. United States,
. I also respectfully dissent from the majority’s alternative, non-Drew holding in Part II. C., ante at 1096-1098, although, as I understand it, this part of the opinion does not purport to alter the law of this jurisdiction. Fundamentally, that discussion addresses what is commonly known as Toliver evidence, summarized in Toliver v. United States,