Appeals from the Superior Court of the District of Columbia; (Hon. Warren R. King, Trial Judge)
Before Steadman and Schwelb, Associate Judges, and Kern, Senior Judge. Opinion for the court by Senior Judge Kern. Concurring opinion by Associate Judge Schwelb.
The opinion of the court was delivered by: Kern
KERN, Senior Judge: A jury convicted appellants Curtis and Shavar Daniels of first degree murder while armed (D.C. Code §§ 22-2401, -3202 (1989 Repl.)) and carrying a pistol without a license (D.C. Code § 22-3204 (a)). Appellants contend that the trial court abused its discretion when it permitted evidence of "other crimes" *fn1 to be admitted at trial against them. We affirm.
The thrust of appellants' argument is contained in the brief of appellant Curtis Daniels:
Because the government never established clear and convincing evidence that appellant committed the alleged drug crimes [the other crimes], because the other crimes evidence . . . proved only appellant's prior criminal relationship with the co-perpetrators of the charged offense, because the evidence had the effect of showing appellant's propensity to commit crime, and because it was vastly more prejudicial than probative, it should not have been admitted. The admission of this evidence deprived Curtis Daniels of a fair trial . . . . The trial court erred in refusing to voir dire the proffered witnesses to determine whether there was clear and convincing evidence that appellant committed the other crimes.
The events leading to the murder, according to the evidence, began on Fourth Street, Southeast, in mid-June of 1988. Rick Brannon ("Country Rick") argued with Artie Ragan, they began fighting, and Brannon punched Ragan in the mouth. When Hector Colon ("Whitey") learned of the fight, he became very angry with Brannon. On July 7th, while at the apartment of Helen Jeffries on 3rd Street Southeast, Colon, Sam Smith ("Guda") and appellants discussed what, if any, action should be taken against Brannon. Colon favored killing him, but the others may have argued against it. *fn2
Later that day, Colon and these same men met again at a house on Seventh Street to discuss whether to kill Brannon. Ultimately, Colon, armed, left the apartment to find Brannon. Smith and appellants followed Colon and joined him on Sixth Street. They entered a parking lot on Fourth Street and saw a man who appeared to them to be Brannon ("Country Rick"). He had the same build and facial features as Rick Brannon and was wearing clothing and a hat similar to what Brannon usually wore. They started shooting at the man, who ran towards Third Street. They pursued him until he fell where he was shot again. Later, Smith told them that they had shot Rick Melson rather than the intended victim, Rick Brannon. Thus, although the assailants intended to kill Brannon, they ended up killing Melson.
Appellants were charged with the first degree murder of Melson. At trial, several individuals, who had witnessed different parts of the shooting and from different vantage points, testified as to what they had seen. Four different witnesses testified that one or the other or both appellants had committed the shooting *fn3 and one witness, who was a friend of appellants, acknowledged that they were present at the shooting of the victim. *fn4 Appellants generally denied committing the murder. In their defense, they presented evidence aimed at discrediting the government's witnesses and also conducted a vigorous cross-examination of these witnesses to discredit their testimony linking appellants to the crime.
The government timely argued to the trial court that appellants had been in a drug operation, evidence of which was admissible as other crimes evidence under the so-called Drew exception to show the motive of the alleged killers. *fn5 Hence, the government proffered to the court that certain witnesses would testify (1) that Shavar and Curtis were involved in Hector Colon's drug ring; (2) that the fight between Ragan, one of Colon's drug seller's, and Brannon, an independent drug dealer, was motivated by competition for drug territory; (3) that Colon's drug organization was using Helen Jeffries apartment on Third Street as a basis for operations and for preparation and storage of the crack cocaine; and (4) that appellants were involved in the Discussion with Colon, their boss, as to what should be done with Brannon. *fn6
Defense counsel objected and argued to the trial court that the government's proffer was inadequate in a number of respects and requested an evidentiary hearing for the court to voir dire the witnesses concerning the proffered evidence that appellants were members of Colon's drug ring. *fn7 The trial court refused to order such an evidentiary hearing.
At the pretrial hearing, after the government's proffer as to the "other crimes" evidence and appellants' responses, the trial court ruled that:
based on what I have heard in this trial and the proffer . . . I'm satisfied that the Government's met its burden of establishing, and the requirement is clear and convincing evidence that there is drug involvement here. I'm satisfied that it is probative in the issue of motive. I'm satisfied that motive is relevant to the proceedings here. And I'm satisfied that the probative value outweighs the prejudicial. Of course I'm prepared to give limiting instructions when that evidence comes ...