July 24, 1992
SHAVAR DANIELS, APPELLANT, CURTIS DANIELS, APPELLANT
UNITED STATES, APPELLEE
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 out. As counsel would request it, I make limiting instructions. But I'll allow that testimony as set out by [the prosecutor].
The trial commenced and after the government had made its opening statement, several witnesses testified as to their knowledge of Colon's drug organization and appellants' involvement therein. *fn8 The jury found appellants guilty as charged after receiving again the special instruction from the trial court that the "Drew evidence" could be considered by them only for the limited purpose of showing motive for the crimes charged.
In a post-verdict motion for a new trial, appellants' main arguments were that the evidence presented by the government was not consistent with the government's pretrial proffer and that Smith's testimony was insufficient to constitute clear and convincing evidence of the drug involvement of appellants, especially of Curtis Daniels, because Smith was an admitted perjurer. The trial court denied appellants' motion for a new trial, observing that the Drew evidence as to Curtis "wasn't as extensive as the proffer," but agreed with the government that the evidence supported "that was in fact a dope dealer working for Hector." The trial court determined that the government "proved enough to establish a basis for admissibility of that evidence."
In this jurisdiction, evidence of other crimes by defendant, uncharged or unproven, is inadmissible except for specified, limited purposes such as to show motive. Drew, supra note 1, 118 U.S. App. D.C. at 15-16, 331 F.2d at 89-90. It should be noted that Drew did not provide any guidance as to what evidentiary standard should be met by the government in showing to the court that the defendant committed another crime, uncharged and unproven. Whether there was sufficient evidence that the defendant had committed crimes other than the charged crime and whether such evidence should be admitted as a "Drew exception" was left to the discretion of the trial court. Our review of such determination by the trial court was for abuse of discretion. Wooten v. United States, 285 A.2d 308 (D.C. 1971).
This court first employed the phrase "clear and convincing evidence" in Light v. United States, 360 A.2d 479 (D.C. 1976). There, the defendant was charged with unauthorized use of a vehicle "stemming from his use of a government motor pool car for personal purposes on September 26, 1974." Id. at 479. We concluded in our opinion: "Appellant contends that the use of the five prior instances of car misuse, which have not been adjudicated, nor connected through evidence with him, was unduly prejudicial to his case. We agree." Id. at 480.
We went on to note in Light: "The government did not suggest that the evidence would constitute an exception to the rule making other crimes inadmissible, but merely stated that it wished to use the evidence as background material to show how appellant was caught . . . . Since appellant's arrest was not then in issue, this [the other crimes evidence] was hardly relevant or necessary." Id. (emphasis added; footnote omitted)
We then gratuitously commented in a footnote in Light, citing United States v. Bussey, 139 U.S. App. D.C. 268, 273 & n.23, 432 F.2d 1330, 1335 & n.23 (1970): "There is authority that, where the evidence involves an alleged crime not reduced to judgment, there must be 'clear and convincing evidence,' adduced in an initial inquiry, that the defendant is connected with the other crimes before the jury should be permitted to hear the evidence." Light, supra, 360 A.2d at 481 n.3.
However, an examination of Bussey as the authority for the clear and convincing standard of proof in this context reveals that no application of such an evidentiary standard for other crimes evidence was at issue. The question to be resolved in Bussey was whether the evidence of the other crime was admissible in the government's case-in-chief under the identity exception to the Drew rule and whether appellant had been prejudiced by the trial court's failure to give the jury limiting instructions as to the proper use of the other crimes evidence in their deliberations.
In dictum, the court suggested that the government, rather than presenting the other crimes evidence in its case-in-chief, alternatively could have introduced such evidence as rebuttal of an alibi provided by a witness for the defense. The federal circuit court of appeals went on to note that if the prosecutor had sought to follow this suggested impeachment procedure, the trial court should then have conducted an inquiry to determine whether the defendant was connected with the other crime by "clear and convincing evidence." The opinion then cites Smith v. United States, 124 U.S. App. D.C. 57, 58 n.4, 361 F.2d 74, 75 n.4 (1966), as its authority for the clear and convincing standard of proof for such evidence. Smith makes no mention of such a standard, but instead "caution the government concerning its use of appellant's police record to establish a prior conviction which was later reversed on appeal."
Later, we held in Groves v. United States, 564 A.2d 372, 374 (D.C. 1989), modified per curiam, 574 A.2d 265 (1990), that "in the absence of a final adjudication of guilt, the government must show by clear and convincing evidence that the other crime occurred and that the defendant is connected to it," and cited as our authority, the dicta at issue in Light, supra, 360 A.2d at 480 and Bussey, supra, 139 U.S. App. at 273 & n.23, 432 F.2d at 1335 & n. 23. *fn9 Thereafter, in Lewis v. United States, 567 A.2d 1326, 1330 (D.C. 1989), we recognized that Groves, supra, 564 A.2d at 374, reiterated the Light and Bussey "requirement" of the clear and convincing evidentiary standard for admissibility of other crimes evidence.
In Lewis, however, we also reaffirmed that "the manner in which the trial court conducts the pre-admission inquiry under Drew is left to the sound discretion of the trial court." 567 A.2d at 1330. We also acknowledged that while exercising this discretion, the failure by the trial court to make all the necessary inquiries constitutes error, but such error is not necessarily "cause for reversal." Id. *fn10
Against this decisional background, we review the trial court's decision to admit the other crimes evidence for abuse of discretion. Groves, supra, 564 A.2d at 374. The trial court may act within its discretion to conduct its pretrial inquiry on the admissibility of the other crimes evidence by means of a "detailed proffer from the government" instead of holding, in effect, a bench trial of the other crime, which presumably will be fully replicated before the jury if admitted. Id. at 375. In its proffer, the government must show the trial court that the evidence that it proposes to present during the trial would, if believed, clearly and convincingly establish that the uncharged crime occurred and the defendants were connected to it. *fn11 If the government fails somehow to present at trial all the evidence that it had proffered or if the trial court finds the evidence in some part deficient because of credibility problems or otherwise, the trial court considers the evidentiary sufficiency and tailors the remedy according to the severity of the failure of proof. The trial court, in its discretion, may, for example, restrict the government's closing argument, give limiting instructions to the jury, or, where it deems there is a probability of "a miscarriage of Justice," declare a mistrial. See Bundy v. United States, 422 A.2d 765, 768 (D.C. 1980).
The trial court in the instant case deemed the evidence as admissible under the motive exception of Drew and declined to consider whether the evidence was admissible, as the government first argued, pursuant to Toliver, supra note 10, 468 A.2d at 960 and Green, supra note 10, 440 A.2d at 1007, as "relevant to explain the immediate circumstances surrounding the offense charged." *fn12
Thereafter, the trial court made all the necessary pretrial other crimes inquiries: it stated explicitly (1) that "the Government met its burden of establishing . . . clear and convincing evidence that there is drug involvement here"; (2) that the evidence is "probative in the issue of motive"; (3) that "motive is relevant to the proceedings here"; and (4) that "the probative value outweighs the prejudicial." Moreover, the trial court was also careful to tailor its ruling to insure there was no undue prejudice to appellants: thus, it refused to allow details about specific individual drug acts by appellants; it proposed to give "limiting instructions" to the jury as appropriate; and it recognized that if the government failed to meet its evidentiary burden on the admissible other crimes evidence, that the case might enter "mistrial territory." Finally, in its denial of the post-trial motion for a new trial, as set forth above, the trial court in effect affirmed its belief that the government's evidence as actually presented met the requisite standard by finding that the government "proved enough to establish a basis for admissibility of that evidence."
We are not persuaded upon this record that the trial court abused its discretion in the manner in which it conducted its pretrial Drew inquiry. We find that the testimony adduced at trial was substantially similar to the government's proffer: (1) appellants came from New York to sell drugs with Colon; (2) appellants sold drugs here; (3) the motive for the killing was a fight with Brannon over drug distribution territory; and (4) appellants participated in Discussions about retaliation against Brannon. *fn13
Furthermore, the trial court made the requisite finding that the evidence of other crimes was relevant and probative as to motive, and we agree. The reason for the murder, albeit of the wrong man, was that Colon's drug organization, which included appellants, was in competition with Brannon for the same territory to sell the same product, crack cocaine.
The evidence may have been in some measure prejudicial to appellants beyond that inherent in any proof of guilt. However, without such evidence, the shooting could have made little sense to the jury, in light of what might have been seen as the otherwise incomplete and confusing facts of the case. *fn14 Nevertheless, when the trial court determines that the other crime evidence is relevant to show motive and its occurrence is established clearly and convincingly, as in this case, it is then "generally conceded," as we do here, "that the prejudicial effect may be outweighed by the probative value." Groves, supra, 564 A.2d at 374 (quoting Drew, supra note 1, 118 U.S. App. D.C. at 16, 331 F.2d at 90). Thus, under the circumstances here we find no abuse of discretion because the trial court determined that the probative value of this evidence outweighed its prejudicial impact and the record supports such determination.
In sum, the trial court admitted the evidence of other crimes only after making "all the necessary inquiries in exercising its discretion," Lewis, supra, 567 A.2d at 1330, and applied the correct evidentiary standard, *fn15 Groves, supra, 564 A.2d at 374. It carefully tailored the admissibility of the evidence so as to give the jury just enough background to make sense of the shooting but no more so as to cause undue prejudice to appellants. *fn16 Moreover, the trial court instructed the prosecutor not to emphasize appellants' involvement in Colon's drug organization in her closing argument. Also, the trial court gave the appropriate limiting instruction to the jury that the evidence should be considered, if at all for motive of the killing. In addition, the trial court was aware that the government's failure to meet sufficiently its evidentiary standard for the other crimes evidence was "mistrial territory," because it expressly denied appellants' motion for a mistrial on this ground. Under all these circumstances, the trial court did not abuse its discretion in admitting the evidence of appellants' "other crimes" and the judgment must be and is
SCHWELB, Associate Judge, Concurring in the judgment: We have held that in order to introduce evidence that a defendant committed an uncharged offense, the prosecution must "show by clear and convincing evidence that the other crime occurred and that the defendant is connected to it." Groves v. United States, 564 A.2d 372, 374 (D.C. 1989), modified 574 A.2d 265 (D.C. 1990) (per curiam). This showing, according to the decision on which the doctrine is based, must be made "before allowing the jury to hear the details of the [other crime]." United States v. Bussey, 139 U.S. App. D.C. 268, 273, 432 F.2d 1330, 1335 (1970) (emphasis added).
A proffer is not evidence at all, In re R.E.G., 602 A.2d 146, 148 (D.C. 1992); Jackson v. United States, 589 A.2d 1270, 1271 (D.C. 1991) (per curiam), and thus cannot constitute "clear and convincing" evidence, or even murky and unpersuasive evidence. Accordingly, this court having elected to impose this requirement of "clear and convincing evidence," I am at a loss to understand how we can allow such a requirement to be satisfied by an attorney's proffer. Aside from the fact that a proffer by a lawyer is not evidence by a witness, *fn1 the Judge cannot tell whether proposed testimony is "clear" or "convincing" -- adjectives which characterize the quality of the evidence -- without evaluating the credibility of the individual who is to provide it.
I note that the Supreme Court held unanimously in Huddleston v. United States, 485 U.S. 681,108 A.Ct. 1496,99 L.Ed.2d 771 (1988), construing FED. R. EVID. § 404 (b), that the government need not even demonstrate to the Judge by a preponderance of the evidence that the defendant committed the uncharged offense. "Such evidence should be admitted if there is sufficient evidence to support a finding by the jury [by a preponderance] that the defendant committed the similar act." Id. at 685. I think it would make sense to conform our jurisprudence to Huddleston; a proposition convincing to all nine of the Supreme Court Justices surely merits our consideration. But see Groves, supra, 564 A.2d at 375 n.5.
While "clear and convincing" continues (at least in theory) to reign supreme, however, I think we ought to eschew an analysis which, by resort to judicial alchemy, converts non-evidence into evidence. People should not be deprived of their freedom on the pretense that something is so when it demonstrably is not so. If we mean that the prosecution must make a proffer which, if true, will be convincing to the Judge, we should cast the rule in those terms, and not proclaim the altogether different principle that proof by clear and convincing evidence is required. Our rhetoric should coincide with reality; if the ostensible requirement of clear and convincing evidence is a misnomer, we should say so, loud and clear. If it is not a misnomer, then we should either unambiguously abandon it *fn2 or follow it according to its stated terms and hold that a prosecutor's proffer does not make the grade.
Nevertheless, I agree that the convictions must be affirmed. Assuming, Groves to the contrary notwithstanding, that evidence means evidence, and that the trial Judge should have conducted a voir dire examination of the "other crimes" evidence outside the presence of the jury, it is obvious from what occurred thereafter, and specifically from the Judge's refusal to grant a mistrial, that he would have admitted the contested evidence even if such an evidentiary hearing had been held. Any error was therefore harmless.