Appeal from the Superior Court of the District of Columbia; (Hon. Joseph M.F. Ryan, Trial Judge)
Before Ferren and Terry, Associate Judges, and Gallagher, Senior Judge. Opinion for the court by Associate Judge Ferren. Concurring opinion by Associate Judge Terry.
The opinion of the court was delivered by: Ferren
FERREN, Associate Judge : Appellant Timothy M. Robinson challenges his convictions for second degree murder while armed and for carrying a dangerous weapon under D.C. Code §§ 22-2403, -3202, and -3204 (1989 Repl. & 1992 Supp.). Appellant's primary contention on appeal *fn1 is that the trial court abused its discretion in admitting in evidence (1) his videotaped admission of drug use and (2) testimony concerning an alleged assault by appellant that took place two nights after the murder for which he was charged. Appellant argues that both his admission of drug use and the testimony concerning the alleged assault constituted other crimes evidence that should have been excluded under Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964), and its progeny. We agree and accordingly reverse appellant's convictions.
A grand jury indicted appellant for the murder of Faith Mobley. At trial, Gladys Baxter testified that sometime between 4:00 a.m. and 4:45 a.m. on May 20, 1989, she was looking out her bedroom window when she saw Mobley walking up Field Place, N.E., toward Eastern Avenue, followed by a black male. Shortly afterwards, Baxter heard Mobley say, "Oh no. Stop." When Baxter went outside to investigate, she found Mobley lying down at the gate in front of Mobley's house. Police arriving on the scene discovered that Mobley was bleeding profusely. Mobley died as a result of four stab wounds to the torso, according to the subsequent autopsy. The medical examiner also concluded that, because of their distinctive form, these wounds had been inflicted by a knife that must have been double-edged along at least a portion of the blade. No murder weapon was ever produced at trial.
Baxter identified appellant both at a lineup and in court as the man whom she had seen following Mobley. Baxter's previous out-of-court identifications were more equivocal, however. In a statement given to police the day after the murder, Baxter said that she wasn't sure whether she would be able to recognize Mobley's assailant if she were to see him again. Shortly after the murder, Baxter described the man that she had seen following Mobley as being light-skinned, tall, thin, clean-shaven, with short hair, and in his early twenties. The defense presented evidence, however, that appellant is only 5'8" tall and that, at the time of the murder, he was thirty-four years old and had a moustache. The record also reflects some dispute as to whether appellant could be properly described as light-skinned. When police first showed Baxter a photo array, she said that three photos resembled Mobley's assailant; appellant's photo was not in this array. When Baxter was shown another array, she initially selected four photos as possibly portraying the murderer. She then picked appellant's photo out of this group, saying, "If this guy here were thinner I'd say it was him." However, in a statement taken by investigators for the defendant, Baxter indicated that she would label her degree of certainty as to her identification of appellant as only three on a scale of one to ten, with ten being the highest degree of certainty.
Appellant's nephew, Jeffrey Boddie, testified for the government that appellant had been living with Boddie's family at 5510 Nannie Burroughs Avenue at the time of Mobley's murder. According to Boddie, appellant came into Boddie's room on the morning of the murder and said that he had stabbed somebody up the street "because she didn't do what she was supposed to do." Boddie also said that he saw appellant take out a butcher knife with a wooden handle and a blade eight or nine inches long, sharp on one side but completely blunt on the other. He did not see any blood on the knife or on appellant, however. "Boddie testified that he told his mother about this incident the next morning, which his mother confirmed at trial, although she was not entirely sure about the date. Boddie made no effort to tell police about his uncle's supposed confession, however, until the police approached him. Boddie acknowledged at trial that he had been afraid that he might be suspected of the murder himself or charged with selling drugs if he failed to cooperate in the investigation. Boddie also admitted that he had shared two fifths of brandy with two friends during the evening before the murder and that he had smoked five or six PCP cigarettes, which he used regularly, during the previous day. The defense later presented expert testimony showing that PCP users are frequently subject to delusions.
Rose Futrell testified for the government that shortly before midnight on May 22 -- two nights after Mobley's murder -- she saw appellant walking up the sidewalk while she was parking her van in front of her house at 5537 Jay Street, N.E., just a few blocks from the murder scene. Appellant stopped suddenly about ten feet *fn2 away from the van, on the passenger side. He was holding an object with a dark-colored handle in his hand, pointing it slightly upward. Although Futrell acknowledged that she could not see the rest of the object because it was covered with a brown paper bag, she surmised that it was a butcher knife. The only ground that she ever gave for this conjecture was that "the bag wasn't full of anything." According to Futrell, appellant stood outside her van for about five minutes looking at her. When she picked up her car phone to dial 911, he ran away.
Finally, the government played for the jury appellant's videotaped statement, including his admission that he had shared crack with women, followed by sex. *fn3 Although the government did not refer to the tape in its closing argument, it argued in an pretrial hearing that this statement would help to supply a motive for the slaying, i.e., that appellant killed Mobley because she had failed to have sex with him after he had given her crack.
The defense sought to show that another early suspect in the murder investigation, James Spriggs, might have killed Mobley. William Jerome Collins, a Field Place resident, testified that on the morning of Mobley's murder, he saw Spriggs playing with a folding knife in the neighborhood. According to Collins, Spriggs was about six feet tall, slender, twenty-one, and clean-shaven at the time of the murder. *fn4 Later on the morning of May 20, at around 7 a.m., Collins saw Spriggs again; Spriggs's "lip was bust" and swollen and he had changed clothes. A neighborhood drug dealer also testified that shortly before Mobley's death, he had sold drugs to a tall, thin, brown-skinned, clean-shaven man with short hair. At trial, the dealer identified a photo of Spriggs as this buyer. Later, according to the dealer, the same man reappeared in the neighborhood and said, "I don't know who's going around who said I killed this girl but I know you all better shut up."
The admission of evidence of a defendant's other crimes may create a significant danger: it may lead a jury to forego careful analysis of the evidence relevant to the charged offense and to convict simply on the basis of the inference that the defendant is a habitual criminal who is likely to have committed the charged offense because he or she has committed other crimes. See, e.g., Thompson v. United States, 546 A.2d 414, 419 (D.C. 1988); Drew, 118 U.S. App. D.C. at 15-16, 331 F.2d at 89-90. Consequently, "once evidence of prior crimes reaches the jury, it is most difficult, if not impossible, to assume continued integrity of the presumption of innocence. A drop of ink cannot be removed from a glass of milk." United States v. Daniels, 248 U.S. App. D.C. 198, 205, 770 F.2d 1111, 1118 (1985) (internal quotation marks and citations omitted) cited in Thompson, 546 A.2d at 419. For this reason, it has long been the rule in this jurisdiction that evidence of a defendant's other crimes is presumptively inadmissible, with the burden on the prosecutor to rebut this presumption. Thompson, 546 A.2d at 419 (citing Drew [, 118 U.S. App. D.C. at 15-16, 331 F.2d at 89-90]).
Evidence of a defendant's other crimes may, nonetheless, be admitted when it is relevant to one of the five exceptions set forth in Drew : motive, intent, absence of mistake, common scheme, or identity. *fn5 Id. at 420 (citing Drew, 118 U.S. App. D.C. at 16, 331 F.2d at 90)). The government's mere incantation of one or more of these exceptions, however, will not function by itself as the "open sesame" that allows in other crimes evidence. "Courts must view with a jaundiced eye evidence purportedly offered as relevant to some other issue but in reality bearing wholly or primarily on the defendant's preDisposition to commit another . . . crime." Id. (citation omitted). More particularly, in order for the trial court to admit other crimes evidence under one of the Drew exceptions,
(1) there must be clear and convincing evidence that the defendant committed the other offense; (2) the other crimes evidence must be directed to a genuine, material and contested issue in the case; (3) the evidence must be logically relevant to prove this issue for a reason other than its power to demonstrate ...