*1 KERN, MACK, Before YEAGLEY and Associate Judges.
MACK, Judge: Associate Appellant Light, a mail clerk/driver Protection Environmental Federal charged in a one Agency (EPA), was use of unauthorized indictment with count stemming his use from a motor vehicle personal car for pool government motor After purposes appellant was convicted by jury 22-2204. D.C.Code *2 480 supervised year proba- exceptions. to one of the
sentenced
well-defined
Robinson v.
D.C.App.,
tion.
513
;
Bobbitt,
(1974) United States v.
146 U.
mid-Septem
in
genesis
had
This case
its
S.App.D.C.
685 (1971);
Sheridan,
ap
one of
when Robert
ber 1974
U.S.App.D.C.
Bussey,
States
co-workers, reported to the EPA
pellant’s
268,
making other crimes use the jurisdiction merely is this stated that it evi It the law of wished (whether background material to show how that evidence of other crimes ful dence as caught 26th. ly adjudicated not), as such or are which in independent appellant’s is not then is wholly charged, of the one Since arrest was sue, hardly necessary.3 this relevant or inadmissable unless comes under one in Indeed view of the fact It was the EPA established undisputed required daily keep use 26th was drivers ear utilization (the authorization) being reports vehicle defense that of time a was used. probative any permissible morning think of in difficult When a driver came to work keys car misuses value that the evidence of he would check out and make out particularly report mileage have contributed. This is could to how much was on any way day this was not true since odometer. At the end of the before the keys, again and since two other connected with driver returned he was kept mileage registered cars testified that had over- record the drivers odometer. (dissent- YEAGLEY, Judge Moreover, ev- Associate assuming that the offered relevant, went ing) : idence pursuit in its beyond “background” far Since, view, cor- my the trial court Thus, relationship. time the other evidence, disputed rectly admitted the now up again government brought Secondly, if one I dissent. even must five subject the other instances *3 otherwise, conclude the should registered dis- which the car’s odometer objection ad- preserved to its has not an
crepancies. It
the
introduced into evidence
missibility.
daily
reports
dis-
showing
utilization
the
crepancies; questioned
Mr.
as
Sheridan
leading
events
arrest
The
one; repeatedly
questioned appellant
unexplained mileage
when certain
began
as
the
to whether he had driven the car on
agency
on the
of an
was noted
odometer
occasions,
argued
other
in-
and
the other
put
Consequently
automobile.
the car was
closing
the jury
stances to
in its
statement
evening
of
under surveillance and
by saying
up
you
to decide
“[i]t’s
missing
25th was discovered
beginning
...
whether
was the
morning
following
hours. The
after
the
the
.
.
.
Light’s
end
for Mr.
unau-
appellant was seen
he
as
returned the
thorized use
that vehicle when he was
admitted,
garage. Appellant
to the
on
finally caught on
Allowing
the 26th.”
being apprehended, that he did
not
such use
the
was
error.
authority to use the
he had
vehicle but said
been forced to use it because his own
reading
transcript
A full
of the trial
agency
running
automobile was
low on
only
shows not
that
other
evi
the
fuel.
trial,
permeated
dence
the
the
but that
prejudicial
outweighed
pro
effect far
the
government’s
At the conclusion
the
Bussey,
bative value. See United States v.
statement,
opening
referred to the
which
272,
supra at
at 1334.
effect
The
circumstances,
foregoing
defense counsel
of the extensive use
other crimes
object
relating
if
stated he would
paint
picture
was to
con
misuse of the
was
vehicle
stantly misusing
government
vehicle presented
jury
“in a
which the
can
manner
until
by
he was curtailed
sur
fruitful
assume there were other crimes committed
brought
veillance which
the indictment.
and that the car
taken
unauthorized.”
Appellant was on trial for one
offense
jury
countered that “the
position
was in no
against
to defend
other
background
to hear the
entitled
unprosecuted crimes. See
Hansford
why
placed
car was
under surveillance
United
366,
359,
.” The court indicated it was
219,
were,
303 F.2d
(1962).
There
part
the case and would
ev-
admit the
moreover, no limiting cautionary instruc
idence, but it
not
would
admit evidence
given
tions
to the jury, in
reference to
confusing. During
be
trial
would
use to be made of such
can
evidence. It
reports
daily
official
regarding
when
not be said “that the error did
influ
utilization of the cars were
offered
evi-
jury
ence the
.
.
.
.” Kotteakos v.
objected only
dence the defense
to certain
328 U.S.
66 S.Ct.
appearing
extraneous data
Once
them.
1239, 1248,
Reversed and said, objection”. Indeed, remanded a new trial. “I have no night deny- (although evidence,” inquiry, an on numerous occasions adduced in initial ing personal reasons). use for with other is connected defendant permitted jury that, should be authority crimes before the There is where the evidence Bussey, alleged judg- evidence. United States involves crime reduced to hear convincing ment, supra at there must “clear and 432 F.2d be objection by proving immediate context of grounds had no for an crime
defense happenings place.1 related near in Although might have records. such relevant, investigation they may did the evidence be admit presented a basis for When if judge, ted the discretion of of a crime. Nei- not constitute evidence probative objection made he finds its value is not substan ther do I find that an tially outweighed testimony was offered and ad- its ad later when risk unexplained mission regarding overnight danger will create a substantial mitted prejudice. undue mileage found the odometers States v. of some Stir Again quite likely 1958), counsel failed to cars. rev’d grounds, other very good it did object for the reason that 80 S.Ct. L.Ed.2d 252 (1960). not constitute evidence of a crime and was otherwise relevant. The fact that the de- majority opinion gen- relies on the objecting fense no basis for found *4 However, eral rule of the in- exclusion.2 admissibility of this evidence is borne out exceptions general stances of rule by its motion for a new which did not excep- exclusion are so numerous that the question its relevance. tion seems to have become the rule.3 Con- sequently, rephrased
The unusual nature of these events war- the Third has Circuit allowing prosecu- the trial court rule of other ranted follows: “Evidence explain why security may tion to the reasons offenses be received relevant for if particular any purpose paying were other officials attention than to show a mere propensity disposition part to the automobile was later ac- or of the misusing. defendant prior cused Proof of the mis- to commit the crime.” United necessary use of the States place supra vehicle was to v. Stir (emphasis added). That arrest in the context of its court observed further that “the surrounding range of proper relevancy events. It was back- ... is almost in- finite”, ground part citing data and gestae, the res McCormick on Evidence § though even 127 (1954). the defendant later in the trial also See Prince, in 264 testimony using (3d admitted his F.2d 850 to The on other being occasions. instant case relevant background properly part admitted as assuming Even that such limited evi- gestae,4 the res dence showed that defendant committed crimes, majority it other was nonetheless admissible. In relied on in the one case recognized The courts general have opinion, stating innumerable the court after exceptions to the rule that excludes evi- rule found the evidence was relevant dence of other uniformly ruling affirmed the trial court’s upheld the use of such evidence where it exception admissible as an evidence was was offered for purpose States, some relevant D.C. Robinson v. United the.rule. such as plan to show a continuing or 508, In anoth App., (1974). A.2d 513 317 scheme, intent, or to show or that er, properly ad ruled as evidence was from the accidental, event was not mitted as to motive when elicted part or as of the gestae res to fill defendant on cross-examination. United background out the of the prosecution 190, 1. failed to connect McCormick on hand that § Evidence at 447-51 appellant. (2d 1972, exceptions listing noting ed. misuses of the vehicle ten but incomplete list). Wig- it is 2 See also J. 1, supra. 3. See authorities note more, 310, 324, seg., et Evidence 301 §§ 1940), 338 and 341 ed. and cases cited Columbia, Id.; D.C. Price v. therein. (1947). Mun.App., also See 142 54 A.2d Villavicencio, Although majority opinion 388 95 Ariz. criticizes the Arizona complete calling constituting (1964), “the of the admission evidence as evi- P.2d gestae. crime, story principle” complains res than dence of a rather on the other Bobbitt, States objected they rors to at the must be time ap Two other cases if considered on cit- occur are to be by States, ed majority peal. D.C.App., involved the admissibili- Adams v. United ty, instance, details of sec- A.2d Wooten v. (1973); a independent States, ond and holdup D.C.App., United 285 A.2d committed States, being defendant. n.3 Bunter v. Such in- D.C. flammatory App., pow comparable is to the cir- A.2d er disputed unobjected cumstances of this here where the evi- court to notice discretionary merely dence was trial defects is and is limited that one of the cars accumulating rights. unexplained overnight affecting those substantial It mile- age. long jurisdiction has only This evidence been held in this not in- “ flammatory ‘[ajbsent showing prejudice, but explain was relevant clear we why disposed alleged the use are not being of the car was to notice errors watched. ap which are permitted place raised for the first ” peal.’ D.C.App., circumstances of a crime in Hill v. context with background (1971) (citation omit information and is not re- quired present ted). supra its in a See Adams case vacuum. at 234. jurisdiction
In a decision in this where prosecution to introduce It seems trial court did not was allowed clear the the hearsay err, testimony rights” there had been a se- nor the “substantial *5 holdups previously ries of any alleged the same affected error. service Accordingly respectfully station it was held that reversal I dissent.
was not warranted there had been where
no objection testimony of the other
crimes and the evidence was relevant
explain the reason for a George stakeout. U.S.App.D.C. 197, F.2d predecessor gener said of the
Our court exceptions,
al rule: “But there are the acts are so admissible when DAY, Appellant, the one on trial Edward blended or connected with proof incidentally involves of one v. other, explain the circumstances or STATES, Appellee. UNITED charged, logically of the offenses or tend1to No. 9339. prove any Mc element of offense.” States, D.C.Mun.App., Donald v. United Appeals. of Columbia Court To a similar Argued April 21, 1976. Bobbitt, supra; effect are v. United States Jones, (7th July F.2d Decided ; Turner, 423 1971) Cir. United States denied, 398 U.S. (7th Cir.), F.2d 481 cert. 26 L.Ed.2d S.Ct. (5th Restrepo,
United States if,
Even majority contends, excludable,
evidence was nei- objected
ther to its admission nor did he
ask for cautionary instruction. Trial er-