Appeal from the Superior Court of the District of Columbia; Hon. A. Franklin Burgess, Jr., Trial Judge
Before Rogers, Chief Judge, and Newman and Ferren, Associate Judges.
The opinion of the court was delivered by: Rogers
Appellant Samuel Wright seeks reversal of his convictions by a jury *fn1 in connection with two burglaries of the Video Place store on the principal ground that the trial Judge abused his discretion in denying appellant's motion to sever the December 1984 and the January 1985 burglaries. He also contends that his convictions must be reversed because the government was allowed to present evidence concerning the absent co-defendant's whereabouts during the two burglaries, and there was insufficient evidence of the crime of burglary since the government failed to prove that property taken belonged to someone else and was appellant's property. Finding appellant's principal claim of error persuasive, we reverse.
The first burglary of Video Place, located at 1910 K Street, N.W., occurred between 7:30 p.m. On December 24, 1984 and December 26, 1984, when it was discovered by store employees. The store manager testified that the glass container holding the video tapes was smashed and the alarm siren was ripped from the ceiling. Ceiling tiles were destroyed where the alarm hung and near the office, which had been entered by going through the ceiling over the locked door. The manager discovered that $2,448.61 of the store's receipts were missing. The police recovered a total of seven fingerprints, including a latent thumbprint from a piece of glass found on the sales counter about a foot from the broken glass display case, which was kept locked.
The second burglary of the Video Place occurred on Sunday, January 20, 1985, Super Bowl Sunday. The police responded to a burglar alarm for 1910 K Street, N.W., and while searching the building for possible intruders, discovered that the mezzanine-level door in the rear of the building had been smashed. Tools were found lying nearby, and footprints in the snow led through the broken door into the building. Two men were seen leaning over the railing above the ground floor stairwell in the rear of the building. The men fled up the steps after a uniform police officer identified himself and ordered the men to halt. Another officer radioed that the elevator was descending to the lower level. When the elevator door opened, a police officer heard one of the men say "It's okay," and, with his gun drawn, ordered appellant and Goode out of the elevator; the officer blocked appellant's attempt to close the elevator door. The men were recognized as the two seen in the stairwell.
The only business burglarized inside 1910 K Street, N.W., on January 20, 1985, was the Video Place, located on the mezzanine level. Burglars entered the store by crawling through the ceiling from the hallway at the back of the store. Ceiling tiles were scattered in the hallway and inside the back door, and the store had been ransacked, leaving the front counter in disarray, and the fire alarm had been disabled. Missing from the manager's office, which had been entered by climbing through the ceiling from the store's showroom over the locked door, was some loose change that was left in a drawer. A fingerprint expert testified that one of the latent prints found in the Video Place after the December burglary matched the fingerprint taken from appellant after his January 20, 1985 arrest.
In defense, appellant introduced records from a halfway house that showed he was a resident of the Community Correctional Center Number 2, located at 1825 13th Street, N.W. in December of 1984. The records reflected that on December 24, 1984, he had left at 12:10 p.m., returned at 12:29 p.m., and signed out again at 5:00 p.m., indicating he was going to 605 8th Street, S.E. Three witnesses testified that appellant had visited their homes between 5:30 p.m. and 11:00 p.m. on December 24, 1984. *fn2 The halfway house records showed that on December 25 he left for 605 8th Street, S.E., at 8:45 a.m. and returned at 10:37 p.m., *fn3 and that On December 26 he left the Center between 6:00 a.m. and 6:16 a.m., 12:15 p.m. and 1:10 p.m., and between 3:00 p.m. and 4:00 p.m.
Appellant contends that the trial Judge abused his discretion in denying his pretrial motion under Super. Ct. Crim. R. 14 to sever the trials of the December 1984 and January 1985 Video Place burglaries. Specifically, he contends the trial Judge erred in ruling that the burglaries were mutually admissible. *fn4 Citing Bridges v. United States, 381 A.2d 1073, 1075 (D.C. 1977), cert. denied, 439 U.S. 842, 58 L. Ed. 2d 141, 99 S. Ct. 135 (1978), he maintains that there was nothing particularly distinctive or unusual about the modus operandi of the burglaries as would constitute a "trademark" of the perpetrator, id. at 1075, such that "there is a reasonable probability that the same person committed both offenses." Drew v. United States, 118 U.S. App. D.C. 11, 16, 331 F.2d 85, 90 (1964). Noting that the method of entry in January 1985 was different because bars had been placed on the window used to enter in December 1984, appellant maintains that there is "nothing about these two offenses that invests them with any particularly distinctive 'modus operandi' identifying them as 'signature crimes' or linking them with any discrete common character" (citing Evans v. United States, 392 A.2d 1015 (D.C. 1978)).
We agree with appellant that the evidence showed only that entry was gained through one of several means during predictable periods of inactivity and the manner of commission of the burglaries was dictated as much by the structural features of the store as by any preordained scheme by the perpetrators. Further, as he argues, the fact that the perpetrators tried to kick in the door in the first incident and did not do so in the second neither compels nor makes probable the inference that entry over the ceiling in the January incident occurred as a result of knowledge gained from the December burglary, as the government argued at trial, since any burglar lacking a tool to pry open the door would be confronted with the same dilemma. Likewise, we agree with appellant that any burglar would have likely pulled out the visible alarm siren and have disabled the equally visible office alarm box. Finally, the aspects of the burglaries that might have provided support for the trial Judge's view that they were mutually admissible is lacking since the evidence did not show that the ransacking was more than that necessary to expose money or valuables. *fn5
The applicable legal principles are well established. Generally, evidence of one crime is inadmissible to prove the defendant's Disposition to commit another crime or to show the defendant's bad character, criminal temperament or propensity toward criminal behavior. Easton v. United States, 533 A.2d 904, 906 (D.C. 1987) (citing Artis v. United States, 505 A.2d 52, 56 (D.C.), cert. denied, 479 U.S. 964, 93 L. Ed. 2d 409, 107 S. Ct. 464 (1986)). A court will allow exceptions to the general rule, however, when the evidence is offered for some legitimate and substantial purpose. Easton, supra, 533 A.2d at 906. *fn6 Nonetheless, when offenses "of the same or similar character" are properly joined under Super. Ct. Crim R. 8 (a), there exists a "substantial risk of prejudice" to the defendant, Cox v. United States, 498 A.2d 231, 235 (D.C. 1985) (quoting Bridges v. United States, supra, 381 A.2d at 1075) because the jury might cumulate the evidence of the various crimes, infer a criminal Disposition of the defendant, or become hostile to a defendant charged with multiple crimes. Crisafi v. United States, 383 A.2d 1, 3 n.2 (D.C.), cert. denied, 439 U.S. 931, 58 L. Ed. 2d 326, 99 S. Ct. 322 (1978). Therefore, severance under Super. Ct. Crim. R. 14 should be granted for offenses of "similar character" unless "(1) the evidence as to each offense is separate and distinct, and thus unlikely to be amalgamated in the jury's mind into a single inculpatory mass, *fn7 or (2) the evidence of each of the joined crimes would be admissible at the separate trial of the others." Bridges, supra, 381 A.2d at 1075; Tinsley v. United States, 368 A.2d 531 (D.C. 1976); Drew, supra, 118 U.S. App. D.C. at 11, 331 F.2d at 85.
Although "rulings in this area tend to be highly specific to the facts of each particular case, . . : a consistent standard can be discerned from a review of the cases." Easton, supra, 533 A.2d at 907; Drew, supra, 118 U.S. App. D.C. at 16,331 F.2d at 90; Brooks v. United States, 448 A.2d 253, 257 (D.C. 1982). This Court requires that the crimes be "so nearly identical in method that it is likely that the present offense has been committed by the defendant." Easton, supra, 533 A.2d at 907 (quoting Bridges, supra, 381 A.2d at 1075). We also have explained that the test of mutual admissibility "does not require that a single characteristic be so unique as to lead to the Conclusion that both crimes were committed by the same person." Bridges, supra, 381 A.2d at 1078 (emphasis in original). See Goins v. United States, 353 A.2d 298 (1976). If one distinctive similarity is not present among the evidence, "the court can consider the totality of the factual circumstances which amalgamated, lay a sufficient basis for admission under the Drew doctrine." Gates v. United States, 481 A.2d 120, 123 (D.C. 1984); see Bartley v. United States, 530 A.2d 692 (D.C. 1987). This is not to say, however, that incidents whose similarities arise from circumstances inherent in the nature of the premises involved are therefore mutually ...