This matter is pending in the Superior Court, where defendant Frederick Morton awaits trial on charges of burglary, robbery, kidnapping, and felony murder. In this interlocutory appeal, the government challenges the trial court’s ruling that precludes the prosecutor from introducing at trial evidence of defendant’s longstanding heroin addiction, circumstantial evidence of his drug use on the day the offenses were committed, and defendant’s admission that he committed prior burglaries to support his drug habit. The trial court recognized that defense tactics at trial might “open the door” to some uses of these types of evidence. As a general matter, however, the court excluded the prior-burglary evidence on the ground that it is propensity evidence, the admission of which is prohibited under Drew v. United States,
For the reasons explained below, we affirm in part and remand in part. We agree with the trial court that, in light of the government’s description of the purpose for which it would usе defendant’s admission about prior burglaries, the evidence cannot meaningfully be distinguished from propensity evidence. Therefore, as the trial court ruled, the evidence may not be admitted unless the defense opens the door to such evidence (e.g., as evidence of the defendant’s intent, by arguing that the defendant innocently possessed a credit card that was missing and presumably stolen from the crime scene). As to the drug-addiction-related evidence, we agree with the trial court that, standing
I.
The government expects to present evidence that, on January 21, 1997, between 2:30 and 3:00 in the afternoon, the body of Sharon Moskowitz was found lying on the floor in the front vestibule of the house where she lived, located at 1971 Biltmore Street, N.W. Moskowitz had been strangled a short time before she was found. There were pry marks on the front door of the housе, the door jam and lock mechanism were broken, the entire house had been ransacked, and a number of items were missing, including credit cards, pennies and other small change, and jewelry. Among the items not taken were televisions and other electronic equipment, bicycles, cameras, and tools. No fingerprint or DNA evidence was recovered from the crime scene.
The government’s theory is that Mos-kowitz was attacked as she returned home with bags of groceries, interrupting a burglary in process. A crime scene photo shows grocery bags and groceries scattered on the floor around her body. The scattered groceries included an unopened bottle of water and a container of orange juice. The carton of orange juice was open (i.e., its twist-off cap and safety seal had been removed) and was found standing upright. The governmеnt theorizes that the perpetrator opened the container and drank some of the orange juice.
Using records obtained from the issuer of one of the missing credit cards, police learned of several transactions with the card that occurred within hours after the murder. The first such transaction occurred at a gas station about 45 minutes after Moskowitz’s body was found. The government apparently has no direct evidence about who used the credit card during that transaction. There was a transaction just before 5:00 p.m. at the Safeway store at the Waterside Mall in the Southwest quadrant of the District. Another of the transactions occurred at a Giant Food store in Marlow Heights, Maryland (the “Marlow Heights Giant”) a few hours later. Another occurred at a Giant Food store at 8th and O Streets, N.W. (the “8th & O Giant”), near midnight the same day. Metropolitan Police Department deteсtives obtained Giant Food video surveillance footage corresponding with the times at which the Marlow Heights and 8th & O Giant transactions occurred. However, the video footage and photographic stills from the videos are grainy, making it difficult to discern facial features. Surveillance footage from the Marlow Heights Giant captured an individual wearing a gray “PITT” sweatshirt and using the credit card to purchase groceries. Video surveillance footage from the 8th and O Giant shows an individual wearing a “PITT” sweatshirt accompanied by a worn-
Soon after the murder, the video footage obtained from the Marlow Heights Giant was broadcast by “America’s Most Wanted” and other media outlets. The broadcasts did not lead to information that enabled police to identify the man in the “PITT” sweatshirt shown in the video. However, responding to one of the media broadcasts, an individual by the name of Morris Brown informed police in February 1997 that, on the day of the murder, at approximately 6:00 p.m., he was in the parking lot of a liquor store when an individual wearing a “PITT” shirt, whom he referred to as “Shorty,” approached him and offered to buy him groceries in exchange for cash. Brown, who is now deceased, told police that he accepted the offer and then drove “Shorty” to the Mar-low Heights Giant. There, Brown spent about twenty minutes selecting groceries and then waited in his car while “Shorty” paid for the groceries. Brown informed police that he gave “Shorty” $40 in exchange for nearly $200 worth of groceries. Brown told police that he did not know “Shorty’s” true identity.
Twelve years passed before police received information that pointed them to defendant Morton. For reasons not explained in the record, the video surveillance footage from the 8th & O Giant was nоt broadcast by the media until 2009. In August 2009, another witness, whom the arrest warrant affidavit refers to as “W-4,” provided information that, on January 21, 1997, the day of the murder, a man wearing a “PITT” sweatshirt approached him and offered to buy him groceries in exchange for cash. W-4 drove the man to the Waterside Mall Safeway. W-4 selected groceries and then left his shopping cart with the man, exited the store, and waited outside the store. Thereafter, W-4 gave the man $80 in exchange for $200 worth of groceries. Police were unable to recover video surveillance footage from the Waterside Mall Safeway, but they showed W-4 still photographs of the individual wearing the gray “PITT” sweatshirt captured from the Marlow Heights Giant video. W-4 identified the individual wearing the gray “PITT” sweatshirt as the same man from whom he had purchased groceries at the Waterside Mall Safeway.
In November 2009, in response to a television broadcast of the 8th & O Giant surveillance video, another witness (whom the arrest warrant affidavit refers to as “W-5”) identified the man in the “PITT” sweatshirt and the woman accompanying him. W-5 identified the woman as W-5’s good friend Joan Williams and identified the man in the “PITT” sweatshirt as “Butch,” a man with whom Williams (who died of a heroin overdose in October 2009) had lived for at least nine months in 1997 (including at the time of the murder).
Two other witnesses also saw the broadcast of the 8th & 0 Giant surveillance video and came forward to identify the man in the “PITT” sweatshirt as defendant Morton. One of these witnesses (“W-2”) is a family member of defendant.
The government asserts that defendant Morton “is a longtime heroin addict who supports his addiction through burglaries and other crimes” and contends that he “committed the charged offenses out of a desperate need to support his heroin addiction.”
II.
The government’s brief identifies four categories of evidence that are in dispute in this appeal: (i) defendant’s “admissions that he has committed burglaries to support his drug habit”; (ii) his “longstanding heroin addiction”; (iii) witnesses recognition of defendant from surveillance videotapes “based on their shared drug history and [defendants] physical manifestations of drug use”; and (iv) expert testimony about drug addiction.
III.
In our jurisdiction, “[i]t is fundamental that evidence of prior bad acts independent of the crimes charged is inadmissible to show the defendant’s disposition or propensity to commit the charged offenses, from which the jury improperly could infer the defendant actually did commit them.” Harrison v. United States,
However, even if evidence falls outside Drew or within a Drew exception and thus is otherwise admissible, it must be excluded if the trial court determines that its probative value “is substantially outweighed by the danger of unfair prejudice[.]” Johnson,
“We review a trial court’s decision to admit or exclude evidence for abuse of discretion.” Riddick v. United States,
A. Defendant’s “admissions that he committed burglaries to support his drug habit”
We begin our discussion by acknowledging the parties’ dispute about whether this category of evidence is properly a subject of this appeal. Defendant asserts that, before the trial court, the government “conceded that evidence of Mr. Morton’s admissions that he committed burglaries to support his drug habit would be too prejudicial, and would amount to propensity evidence,” and therefore “modified its position and represented that it would not seek to introduce evidence that Morton admitted that he committed other crimes to get funds, but only to admit evidence that Morton was a heroin addict.” In contrast, the government asserts that it “did not withdraw its request,” that its statements in the transcript to which defendant points merely reflected the “consensus in the courtroom that the court had excluded [the] evidence,” and that at worst the reсord is “ambiguous” on this point. We need not resolve this dispute since we conclude in any event that the trial court’s ruling generally excluding the evidence must be upheld.
In ruling that it would not permit the jury to hear the evidence of defendant’s prior burglaries (or other prior criminal “capers”), the trial court ruled that “given the nature of this case[,] ... to bring up the ... burglaries [defendant] did ... would go to propensity” and would have a prejudicial effect. No extended discussion is required to explain why we discern no abuse of discretion in that ruling, because the prosecutor’s explanation of the intended use of the evidence demonstrates why it cannot meaningfully be distinguished from propensity evidence. The prosecutor explained that the evidence of prior burglaries would be admissible if the defense disputes that defendant stole the credit card because “[i]n fact what he does and what he has a history of doing is stealing things and then using them.” Continuing that theme, the prosecutor added that the evidence would go toward establishing that “[h]e took that credit card” because, “That is what he does. That is what he has always done.” The prosecutor’s description shows quite clearly that the intended use of the prior-burglary evidence is as classic propensity evidence. The trial court did not err in ruling that the evidence generally must be excluded.
B. Defendant’s “daily drug use and longstanding heroin addiction” and the evidence that he was “using” on the day of the burglary and murder
1. The probative value of the drug-addiction evidence as Johnson/Toliver evidence
The government’s brief contends that presentation of the evidence of defendant’s drug addiction is necessary to place what happened at the crime scene in an understandable context. The government
We are not persuaded that the jury needs the drug-addiction evidence to derive a coherent story from the evidence. As the trial court reasoned and defense counsel agreed, even without the evidence of drug аddiction, the evidence suggests that the crimes likely were the acts of a “desperate person.” Like the trial court, we discern no reason why the jury would be stymied for lack of an explanation as to why the perpetrator took smaller items rather than larger ones or drank orange juice. This does not appear to be a case in which the government needs drug-addiction evidence to “explain[] an action that otherwise would [be] argued to be motiveless on [defendant’s] part and thus open to reasonable doubt on identification.” Lazo v. United States,
The trial court rejected the government’s argument that the evidence of defendant’s heroin addiction should be admitted as motive or identity evidence, reasoning that “a lot of people” “commit burglaries because they have an addiction” and that defendant’s drug addiction does not show “his identity as the person, as opposed to the ... hundreds of people who have drug habits who commit burglaries.”
The government argues that the trial court was able to conclude that the drug-addiction evidence was not “probative of [the perpetrator’s] identity as opposed to everyone else who’s addicted to drugs” because, erroneously, it failed to analyze the probative value of the drug-addiction evidence “in context rather than in isolation.” Robinson,
We are satisfied that the drug-addiction evidence has probative value as evidence corroborative of defendant’s identity as the perpetrator, and that, used for that purpose, it would not amount to prohibited propensity evidence. To be sure, the drug-addiction evidence could be characterized as propensity evidence, just as other types of permissible other-crimes ev
Similar reasoning applies here. Although defendant Morton’s admissions about his longstanding drug addiction and the evidence suggestive of his active drug use on the day of the Biltmore Street burglary may be reflective of his character, and may suggest that he has criminal propensities, the relevance of the evidence is logically independent of those possibilities. The relevance of the drug-addiction evidence is based on the inference that the burglary was committed by a desperate person (an inference that the trial court has already specifically ruled the government will be permitted to argue) and on the common recognition that a drug-addicted individual is one type of desperate person.
In fuller context, the relevance of the drug-addiction evidence as corroborative evidence is premised on the following reasoning:
(1) The evidence (per the statements of W-3 and W-5) that defendant Morton is the man shown in the 8th & 0 Giant surveillance video, recorded at the time the stolen credit was used there, creates an inference that defendant stole the credit card;14
(2) The parties have agreed to stipulate that defendant was on Biltmore Street prior to 2000, creating at least a weak inference that defendant was familiar with Biltmore Street in January 1997;
(3) The evidence from the crime scene creates an inference that the person who committed the Biltmore Street burglary was a “desperate person”; and
(4) The drug-addiction evidence (i.e., the evidence that defendant has been a heroin addict for thirty years and the circumstantial evidence, from W-B’s statement, that defendant used heroin on the day of the burglary) corroborates the inference from (1) and (2) that defendant stole the credit card during the Biltmore Street burglary, because the drug-addiction evidence is consistent with the inference in (3) that the burglar was desperate.
Stated differently, in conjunction with the inferences in (l)-(3), the evidence of defendant’s heroin addiction and active drug use on January 21, 1997 corroborates the inferences that place him within a narrowed pоol of potential perpetrators, and increases the likelihood that he was the “desperate person” who burglarized 1971 Biltmore Street.
The drug-addiction evidence thus has legitimate, probative value that does not rest on inferring conduct from criminal proclivity. If the trial court failed to take into account that probative value, as the government suggests, we think this can be attributed to the court’s expressed views (what the court called “the bottom line”) that “corroboration cannot be supplied by [defendant’s] drug use,” and that the drug-addiction evidence’s corroboration of inferences (i.e., its “lack of corroboration outside of the inference”) is a “problem” and is not “real evidence of corroboration.” While the meaning of the court’s statements is not crystal clear, the statements may reflect a misapprehension of the law. This court has recognized that “evidence of other crimes or acts is admissible to corroborate evidence that itself has a legitimate non-propensity purpose.” Jones v. United States,
This is not a case in which we can say that the various inferences and statements need no corroboration, such that the trial court must inevitably conclude that the prejudicial effect of the drug-addiction evidence substantially outweighs its probative value in helping to prove that defendant was the burglar. The government has no direct evidence placing defendant at the scene of the crimes, possibly making pertinent the principle that “the more еssential the evidence, the greater its probative value, and the less likely that a trial court should order the evidence excluded.” United States v. King,
We are left with the question of whether a fuller assessment of the probative value of the drug-addiction evidence as corroborative evidence would affect the court’s balancing of рrobative value against prejudicial effect — a question we are unable to answer. The trial court might once again conclude that what it regards as the “extremely prejudicial” nature of the drug addiction evidence tips the scales in favor of excluding the drug addiction evidence; or, it might conclude that the prejudice such testimony will cause is “not unfair [but] instead, merely the negative result of the testimony’s [legitimate] probative value.” United States v. Cruz,
C. Expert testimony about drug addiction
The government seeks to cаll a narcotics expert to testify concerning “(1)
V.
For the foregoing reasons, we uphold the trial court’s ruling excluding evidence that the defendant committed prior burglaries, and we direct the trial court to reweigh the prejudicial effect of the drug-addiction evidence аgainst the probative value of that evidence as evidence corroborating defendant’s identity as the perpetrator of the Biltmore Street burglary. We remand for further proceedings consistent with this opinion.
So ordered.
Notes
. Toliver v. United States,
. Johnson v. United States,
. The government disclosed in a discovery letter to the defense that another witness reported that the person who tendered the credit card missing from the crime scene during the Waterside Mall Safeway transaction was wearing a different type of shirt — i.e., not the "PITT" shirt shown in the Giant Food surveillance videos.
. The government also has evidence that, in 1995, defendant admitted that he was in a common-law relationship with Williams.
. The government disclosed to the defense in a discovery letter, however, that defendant’s sister “is of the opinion that the surveillance video from the Giant grocery store does not, in her opinion, look like her brother Frederick in that the facе is longer and the body is bigger.”
. The government points to defendant’s "shopping at. the 8th and O Streets Giant shortly before midnight” on the day of the murder as evidence that "[o]nce [defendant] had gained the necessary cash, he returned to ... the heroin-trafficking ‘strip’ at 7th and O Streets.”
.In the discussion in the text below, we consider categories (ii) and (iii) together.
. We note that the trial court also remarked— and the defense agreed — that if defendant admits at trial that he possessed the stolen credit card but contends that he did not know it was stolen, the evidence of his prior burglaries would be probative of his intent and could be admissible on that basis. That is, the trial court observed that if the defendant were to say, "I possessed them, but I didn’t know they were stolen,” the government would want to show that “he possessed cards in the past [and] ... knew they were stolen.” The court then asked defense counsel, "if [defendant] was saying that, you’d agree the case law supports the proposition that [the government] could bring up other things in the past to show that it wasn’t innocent possession ... ?" Defense counsel responded, "If Mr. Morton denied knowledge that they were stolen items, yes, we’re in agreement.”
. See also United States v. Lewis,
. The trial court relied on this court’s analysis in Robinson v. United States,
If the defendant is the only person so motivated, the evidence can be strong; e.g.[,] the desire of a criminal for revenge against those who testified against him. But where the motive is one shared with many others with opportunity to have committed the crime, prejudice is often thought to outweigh probative worth; for example, proof that defendant is an addict offered to show a motive for a burglary.
Id. (footnotes omitted) (quoting 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5240, at 483 (1978)). Similarly, we observed, "where the suggested motive relates only to a broad class of possible victims, it may be of little value in showing that the defendant committed a particular act against a particular victim .... The more common or generalized the motive evidence, the more it verges upon inadmissibility as mere propensity evidence.” Robinson,
. Cf. Wright v. United States,
. The court in Torres, which involved a prosecution for murder and robbery, considered the admissibility of evidence that Torres had previously committed a kidnapping in order to obtain transportation to Texas (he released his victims "only after [victim] Cross agreed to drive Torres to Texas"). Id. The court held that this other-crimes evidence was admissible in Torres’s murder/robbery trial, in which the government alleged that Torres stole one victim's car, "which was later found in Texas.” Id. The court reasoned that the evidence surrounding the earlier kidnappings was "independently relevant because it proved Torres' rather desperate desire for money and transportation to Texas." Id. The court observed that “[ajlthough the evidence also reflects poorly on Torres’ character, its logical relevance is independent of that.” Id. at 233-34.
. See, e.g., United States v. Mitchell,
.See White v. United States,
. We note that the trial court did leave open the possibility that testimony by W-3 about his familiarity with the defendant’s drug use could become admissible if the defense "goes too far, [and] open[s] the door to it," such as by suggesting that W-3, whose association with defendant apparently ended sometime before 1997, now "has some kind of bias" against the defendant. That circumstance, the court contemplated, could provide a basis for allowing W-3 to explain, more benignly, that W-3 and defendant used drugs together until W-3 "was getting [his] life straightened up, and [defendant] wasn’t."
. For example, defendant's admissions about his drug addiction bolster W-3’s statement that he was able to identify defendant as the man in the video because of the nose-rubbing gesture he makes "when he's using”
. We observed many years ago, "it has become increasingly evident that the problem of urban crime is largely a problem of heroin addiction” and that ”[i]t is well known that most addicts support their habits through criminal activities.” Gorham v. United States,
. Cf., e.g., Samuels v. United States,
On remand, if the court determines that at least some of the drug-addiction evidence may be admitted, it will need to consider each item of such evidence separately for its corroborative value. We agree with the observation that "[t]he notion that the more other crimes evidence the prosecution is permitted to introduce, the more it is entitled to get in is misguided.” United States v. Everett,
. See Thompson,
