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November 10, 1994


Appeal from the Superior Court of the District of Columbia. (Hon. Stephen F. Eilperin, Motions Judge). (Hon. Fred L. McIntyre, Trial Judge)

Before Ferren and Sullivan, Associate Judges, and Belson, Senior Judge.* Opinion for the court by Associate Judge Sullivan. Dissenting opinion by Senior Judge Belson.

The opinion of the court was delivered by: Sullivan

SULLIVAN, Associate Judge: Following a jury trial, appellant was convicted of premeditated first-degree murder while armed, in violation of D.C. Code §§ 22-2401, -3202 (1989 & Supp. 1990), conspiracy to distribute and possess with intent to distribute cocaine and phencyclidine ("PCP"), in violation of id. § 33-541 (a)(1) (1993), and possession of a firearm during a crime of violence, in violation of id. § 22-3204 (a) (1989 & Supp. 1994). Appellant raises three principal issues on appeal: (1) that the motions Judge erred in ruling that "other crimes" evidence of the murder of two minor children and appellant's possession of two handguns would be admissible at appellant's murder trial pursuant to the Drew exception to prove identity; *fn1 (2) that the trial court erred in admitting into evidence two co-conspirator's statements; and (3) that the government's belated disclosures of Brady *fn2 material deprived him of a fair trial. We conclude that the motions Judge abused his discretion in ruling that the evidence of the two children's murders could be admitted at appellant's trial. Thus, we reverse appellant's convictions and remand the case for a new trial. In view of our Disposition, we need not reach the remaining issues raised by appellant.


Essentially, the government's theory at trial was that appellant, Tyrone Carrington, and Bruce Void were co-conspirators in a cocaine and PCP distribution operation and that appellant and Void murdered Carrington because Carrington was planning to withdraw from the conspiracy. The government's evidence was that Tyrone Carrington was shot twice in the head while he sat in his car, once from the driver's side with a .45 caliber pistol, and once from the passengers side with a pistol capable of firing a .38 caliber bullet. Moments before Carrington was shot, appellant was observed riding beside Carrington in Carrington's Corvette, with Bruce Void following them in his truck. When Carrington's body was found minutes after his murder, his key ring and mobile telephone were missing. Within fifty minutes of Carrington's death, an apartment at Glassmanor Drive in Maryland where Carrington's girlfriend, Crystal Brown, lived with Carrington's thirteen-year-old son, Carlos Carrington, and Brown's twelve-year-old brother, Calvin Moore III, was entered without force. A localized search of the apartment by the perpetrators centered around the closet in Brown's bedroom where she kept guns, money and drugs as part of the conspiracy. A 9 mm. handgun, money and drugs were taken from the apartment, and the two children were each found shot in the head with a .45 caliber pistol. Carlos Carrington died at the scene; Calvin Moore died two days later. Expert evidence presented at trial showed that the bullets recovered from the bodies of the children were fired from one of the very same guns used to kill Carrington.

Other evidence established that of the three co-conspirators only Carrington had a key to the Glassmanor apartment, that both appellant and Void visited the apartment regularly to conduct drug business, and that both Void and appellant knew the two children. Also, two calls were made to Brown's apartment within a few minutes after Carrington's death, one from Carrington's car phone and one from Void's car phone. Further, when appellant and Void were arrested a week later, while sitting in Void's truck, the police recovered from appellant the 9 mm. pistol that had been stolen from the Glassmanor apartment on the night of Carrington's murder.

Appellant's defense was that he did not kill Carrington. In a pretrial hearing, the motions Judge denied appellant's motion to exclude evidence of the murder of the two children *fn3 and ruled that there was clear and convincing evidence that appellant was connected to the murders of the children. At trial, appellant was subsequently found guilty of the murder of Tyrone Carrington and of the drug conspiracy charges. In a separate trial, Bruce Void was also convicted of drug conspiracy charges and the first-degree murder of Carrington. At Void's trial, however, although the jury did receive a stipulation to the effect that the .45 shell casings recovered from the Glassmanor apartment were fired from the same gun that killed Carrington, the government was not allowed to introduce evidence of the murders of the two children because the same motions Judge had ruled that such evidence would be prejudicial to Void. According to the motions Judge, the evidence of the murders of the children was allowed against appellant because, in the words of the Judge, "the evidence connecting Johnson was a lot stronger." Void v. United States, 631 A.2d 374, 382 n.15 (D.C. 1993). Though the motions Judge did not elaborate, presumably he was referring to the fact of appellant's possession of the 9 mm. pistol at the time of his arrest.


Appellant claims that the motions Judge erred in ruling that the following "other crimes" evidence could be introduced at trial under the Drew identity exception: (1) the double murder of Carrington's son and Crystal Brown's brother, (2) appellant's possession of a .38 caliber revolver in August 1989; and (3) appellant's possession at the time of his arrest of a 9 mm. handgun which had allegedly been taken from Brown's apartment on the night the children were murdered. Appellant contends that he was not linked to the murders of the two children by clear and convincing evidence, as is required by the applicable standard, and that the evidence regarding the murders of the children had no probative value towards the issue of identity; he further argues that the evidence of the two boys' murders was highly inflammatory and prejudicial. Moreover, appellant argues that the evidence relating to the two guns should have been excluded because its probative value was outweighed by its prejudicial effect. *fn4

According to appellant, the other crimes" evidence relating to the boys' murders and to the guns was in effect improper preDisposition evidence, the admission of which constituted reversible error. We hold that evidence of the two boys' murders should have been excluded at appellant's trial because its probative value was indeed outweighed by its prejudicial effect; however, we conclude that the evidence regarding appellant's possession of the two pistols was properly admitted at trial. *fn5


"It is a principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit the crime charged, from which the jury may infer that the defendant committed the crime charged." Drew v. United States, supra, 118 U.S. App. D.C. at 15, 331 F.2d at 89. The inherently prejudicial nature of other crimes evidence creates the danger that "a jury forego careful analysis of the evidence relevant to the charged offense" and find guilt based upon the improper inference that if the defendant has committed other crimes, then he is likely to have committed the crime charged. Robinson v. United States, 623 A.2d 1234, 1238 (D.C. 1993). This inference of criminal propensity undermines the presumption of innocence and the defendant's ability to receive a fair trial. Thus, in the interests of safeguarding the presumption of innocence and the right to a fair trial, evidence of a defendant's other crimes is presumptively inadmissible in this jurisdiction. *fn6 See id.; Thompson v. United States, 546 A.2d 414, 419 (D.C. 1988).

To rebut the presumption of inadmissibility, the prosecutor must show that the other crimes evidence falls within one of the well-recognized exceptions to the Drew exclusionary rule: motive, intent, absence of mistake, identity, or common scheme. Where, as here, evidence is offered under the identity exception, the evidence may be admissible "when there are enough points of similarity in the combination of circumstances surrounding the two crimes to create a reasonable probability that the same person committed each." Groves v. United States, 564 A.2d 372, 376 (D.C. 1989). Before evidence offered under an exception can be admitted, however, the trial court must make several threshold inquiries:

(1) there must be clear and convincing evidence that the defendant committed the other offense; *fn7 (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 criminal propensity; and (4) the evidence must be more probative than prejudicial.

Roper v. United States, 564 A.2d 726, 731 (D.C. 1989) (citations omitted). Thus, there must be a "reasonable need for the evidence," thereby ensuring that the evidence will "offer a real contribution in the process of proof." Easton v. United States, 533 A.2d 904, 906 (D.C. 1987). Even where the other crimes evidence is offered for a legitimate purpose, however, "the trial court must exclude the evidence unless, in the exercise of 'discretion separate from the initial Drew determinations,' the court concludes that the probative value will outweigh the prejudicial impact on the defendant." German v. United States, 525 A.2d 596, 607 (D.C.) (quoting Campbell v. United States, 450 A.2d 428, 430 (D.C. 1982)), cert. denied, 484 U.S. 944 (1987). We review the trial court's decision to admit other crimes evidence for abuse of discretion. Groves, supra, 564 A.2d at 374.


Applying these principles to the present case, we have no quarrel with the motions Judge's ruling that there was clear and convincing evidence that appellant was connected to the murders of the two children and that the evidence was relevant to the issue of identity. The motions Judge found that use of the same gun to kill Tyrone Carrington and the two boys, the phone calls to Crystal Brown's apartment, the unforced entry of the apartment, the perpetrators' apparent familiarity with the contents of the closet, and appellant's possession, at the time of his arrest, of the 9 mm. handgun taken from the apartment on the night of the killings demonstrated by clear and convincing evidence that appellant was connected to all three murders and to the break-in. Because appellant's defense was mistaken identity, the motions Judge concluded that the evidence was relevant to the issue of identity as it tended to establish that the same person who killed Tyrone Carrington was the same person who entered Crystal Brown's apartment, took the drugs and money, and shot the children.

While the evidence was in fact probative of the issue of identity, we hold that it was nevertheless inadmissible because the highly prejudicial effect of that evidence significantly outweighed its probative value. Although "other crimes" evidence is in itself presumptively prejudicial, it is also true that "some types of cases, particularly those involving tragic death or injury, have an inherent emotional impact." Dixon v. United States, 565 A.2d 72, 76 (D.C. 1989) ("a fatal stabbing is not an antiseptic event which could or should be made to look pretty"). Additionally, certain crimes, such as illegal drug activity, increase the risk of prejudice to a defendant because the offense is considered particularly reprehensible. See United States v. Terry, 911 F.2d 272, 277 (9th Cir. 1990) (defendant's "association with drugs would necessarily be highly inflammatory in the minds of jurors"); United States v. Simpson, 910 F.2d 154, 158 (4th Cir. 1990) (relevance of other crimes evidence outweighed by the highly prejudicial insinuation of drug crimes); United States v. Crawford, 438 F.2d 441, 446 (8th Cir. 1971) ("In today's society, possibly no act is more abhorred than the selling of narcotics."). The present case involves both the emotional impact of the heinous slaying of two innocent children, asleep and alone in an apartment, and the reprehensible character of illegal drug activity and its attendant violence. Under these circumstances, the risk of prejudice to appellant increased dramatically and the inflammatory evidence of the two boys' murders, though otherwise relevant, should not have survived the weighing process contemplated by Drew and its progeny.

Unfortunately, our review of the motions Judge's decision to admit the evidence is hampered by the limited record developed at that hearing. While the decision to admit other crimes evidence is committed to the sound discretion of the trial court, "the record must reveal a sufficient evidentiary basis for the court's decision." Robinson, supra, 623 A.2d at 1239. Although the motions Judge did state that in considering the evidence he found that its probative value exceeded its prejudicial effect, he did not elaborate further and the record does not adequately support that finding. In deciding to admit the evidence, the motions Judge stated only that the government could show "very, very powerfully" that the same person or persons killed both Carrington and the children. We agree that the probative strength of the evidence is apparent; however, we cannot say that admitting the evidence contributed more to the process of proof than it tended to support the impermissible inference that if the appellant could kill two innocent children, then he could have clearly killed Tyrone Carrington. Such an inference "diverts the jury's attention from the question of the defendant's responsibility for the crime charged to the improper issue of his bad character." Campbell, supra, 450 A.2d at 431.

Though the evidence was initially introduced to establish the identity of appellant as one of Tyrone Carrington's murderers, its relevance to that issue was subsumed by its tendency to prove a propensity to kill on the part of appellant. We have cautioned that "courts must view with a jaundiced eye evidence purportedly offered to some other issue but in reality bearing wholly or primarily on the defendant's preDisposition to commit . . . another crime." Thompson, supra, 546 A.2d at 420. Here, evidence offered to prove identity ultimately became more probative of criminal Disposition, a "quintessentially forbidden issue." See Holmes, supra note 6, 580 A.2d at 1267 n.17. Because the evidence of the two boys' slayings was tainted by an overwhelming tendency to prove Disposition, it was impermissibly prejudicial to appellant and should have been excluded.

Further, the prejudice to the defendant in admitting the evidence was not offset in any manner by a substantial need for the evidence on the part of the government. In weighing the probative value against prejudicial effect, courts should consider the government's need for the evidence and whether the prejudicial effect of the evidence can be minimized by limiting instructions. Thompson, supra, 546 A.2d at 427. "It is not enough that collateral transactions fit within one of the recognized exceptions; there must be a further showing that the introduction of the evidence is necessary, and that its potential for prejudice and confusion is outweighed by its probative value." Harris v. United States, 366 A.2d 461, 464 (D.C. 1976). The government had more than enough bricks on which to build its conspiracy and murder case without admitting evidence of the two boys' murders. Other evidence tended to support the government's theory of the case more directly and less prejudicially: the break-in at the Glassmanor apartment and theft of drugs and money from the apartment; appellant's possession at the time of his arrest of the 9 mm. handgun taken from the apartment; evidence of the sighting of appellant cleaning a .38 caliber revolver prior to Carrington's murder; the fact that appellant was seen in a car with Carrington moments before Carrington was fatally shot; and Carrington's alleged desire to leave the drug conspiracy.

Our analysis is carefully guided by our recent decision in Void v. United States, supra, 631 A.2d at 374, the case of appellant's co-conspirator, Bruce Void. There, evidence of the two boys' murders was excluded by the motions Judge because he found that the evidence was too prejudicial, although other evidence was allowed regarding the break-in at the apartment and the fact that shell casings from the gun used to kill Carrington were also found at Crystal Brown's apartment. Id. at 381. Thus, Void is particularly instructive here because the strength of the government's case without evidence of the boys murders was proven during that trial, with no resulting prejudice to the government in securing convictions against Void. In upholding Void's conviction on appeal, we stated that

the motions Judge's ruling [to exclude the evidence] was based on the extremely prejudicial nature of evidence that the same person or persons who had killed Carrington had also shot his son and his girlfriend's teenage brother, and the absence of any real prejudice to the government's case by omission of the boys' murders.

Id. at 383.

For the same reasons we articulated in Void, the motions Judge here should have ruled that evidence of the boys' murders was inadmissible in appellant's trial. While it is true that evidence of the murders was probative of the issue of identity in appellant's case, the evidence was also clearly more prejudicial to appellant than to his co-conspirator Void. The 9 mm. pistol found on appellant at the time of his arrest arguably placed him at the scene of the children's murders, thereby strengthening the inference that appellant was involved in all three murders. This stronger connection to appellant's case, however, did not render the evidence of the boys' murders any more admissible during appellant's trial as the probative value of the evidence continued to be outweighed by its prejudicial effect. Further, as was the case in Void, excluding the evidence of the murders of the children would have resulted in no real prejudice to the government. This is especially true since the jury in the present case could have heard evidence that shell casings recovered from the Glassmanor apartment -- rather than from the skulls of the children -- were fired by the same gun that killed Carrington. Thus, there was no countervailing government need for the evidence that would have rendered the evidence tolerably prejudicial. The Drew identity exception only provided a potential means of admitting the evidence: "the government's mere incantation of one or more of exceptions . . . will not function by itself as the 'open sesame' that allows in other crimes evidence." Robinson, supra, 623 A.2d at 1238. In light of the increased prejudice to appellant and the absence of demonstrable prejudice to the government in excluding the evidence, the evidence of the murders of the children should have been ruled inadmissible by the motions Judge.


At trial, the prejudicial effect of the evidence was further compounded by the amount of evidence presented on the two boys' murders. Evidence of the shootings permeated the trial from the government's opening statement to closing arguments. In the prosecutor's opening statement, he revealed that a bullet exited one boy's ear and that one boy was shot once and the other boy twice. He also stated during opening statement that when Crystal Brown returned to her apartment, she heard a moaning sound, thereafter discovering that her boyfriend's son and her younger brother had been shot. This court has recognized the danger of references to other crimes evidence during opening statements. Day v. United States, 360 A.2d 483, 485 (D.C. 1976) ("Evidence which comes within the Drew exceptions should not be mentioned in opening statement, nor should it be ruled admissible without a proffer of proof from the government out of the hearing of the jury."). While the present case is distinguishable in that here there was a pretrial ruling allowing the evidence, the danger ...

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