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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 remains that references to other crimes during opening statements "irretrievably puts before a jury the fact that a defendant has been involved in criminal activity." United States v. Bailey, 164 U.S. App. D.C. 310, 505 F.2d 417, 420 (1974), cert. denied, 420 U.S. 961 (1975).

Further, during the prosecutor's opening statement and early in the government's case-in-chief, a stream of references to the two boys' murders focused the jury on the issue of whether appellant was a child killer as well as being a drug dealer and an alleged triggerman in the death of Tyrone Carrington. After opening statements, the government called Crystal Brown as its first witness, the woman who in one tragic evening, lost her boyfriend, her boyfriend's son, and her younger brother. Though she testified at length about the drug operation in which she, Carrington, Void, and appellant were involved, she also testified about specific aspects of the boys' murders and the break-in at her apartment. She discussed how, on the night of the murders, she had given the boys explicit instructions not to open the door for anyone and how she had tested them on this instruction in the past by appearing to leave and then returning to the door. She described the horrible scene she discovered upon returning to her apartment, finding Carrington's son Carlos and her brother Calvin both shot in the head, with a gun lying on the floor in front of them. She testified that she did not try to hide the bag of cocaine in her dresser because her "first priority was to get some help for the kids." She also stated that neither appellant nor Bruce Void attended the funerals or the wakes of the two boys, even though both men knew the boys and had played with them in the past. The government concluded its direct examination of Crystal Brown as follows:

Q. Ms. Brown, what happened to Carlos Carrington?

A. He was already dead when I got there.

Q. And what happened to your brother, Calvin Moore, III?

A. He was pronounced dead about two days later.

MR. FRIEDMAN: I have no further questions.

THE COURT: All right. Let me give the jury a five-minute recess before we start the cross examination.

References to the boys' murders continued throughout the trial. The Prince George's County detective who responded to the scene of the boys' murders testified on direct examination by the prosecutor as follows:

Q. Now, were any--Were there any bodies there when you got there?

A. There was one.

Q. And who was that, if you know?

A. Carlos Carrington.

Q. How old is he?

A. I believe Carlos is 13 years old.

Q. Where was he?

A. Laying on a bedroom floor wrapped in a blanket pulled over his head.

Q. And was he dead or alive?

A. He was dead.

Q. Was the other boy dead when you arrived?

A. No. When I had arrived he had already been transported to the hospital. He was still alive at the time he was first found.

Later in the trial, another detective who was present during Carlos Carrington's autopsy testified regarding the bullet recovered from the skull of Carlos Carrington and how the bullet was marked with the victim's initials for identification purposes. Following that detective's testimony, the government called the evidence technician who retrieved the shell casings from the scene of the boys' murders:

Q. The one that was lying there, can you just briefly describe for the jury what you saw?

A. The young black male was lying there with a pillow that appeared to be folded over the top of his head and also had a blanket that was covering the rest of his body.

Q. Was there any sign of shots fired?

A. It appeared to be two bullet holes in the top of the pillow that was covering the left side of his face and there's also some evidence of blood coming out of the pillow itself.

Q. Did you find any sign of shots fired, any bullets there?

A. Yes, I did. I located three .45 caliber shell casings. Two of them were very close to the bloody area, blood spots, and one was just a short distance away towards the closet area, as I indicated with this line here (pointing).

Q. And did you find any slugs, any bullets?

A. Yes, I did. When we removed the pillow from the young man's face and attempted to move him, we observed a large caliber bullet that was alongside his right ear in between the pillow and his face. And the second large caliber bullet was under the bloody -- spots of blood areas, actually down underneath the carpet. I had to cut the carpet out, a square, and pull the carpet back and the bullet was lodged in the wooden floor.

The government also elicited testimony during its case-in-chief to the effect that one child could have awakened only to have been shot in the head immediately thereafter. In the government's closing argument, the prosecutor stated:

Then you can conclude that one of the boys woke up, and the two boys were executed. They would have recognized William and Bruce, wouldn't they? Yes. Yes. The same .45 that shot the second bullet into Tyrone Carrington put three bullets into the boys. That's the point of all that evidence about the three shell casings there lying around the boys, one bullet out of one boy's ear, one bullet out of one boy. The one who had the one in his ear, another bullet dug out of him in the autopsy in Maryland.

The government's pervasive references to the boys' deaths placed the forbidden issue of the appellant's criminal Disposition squarely before the jurors, often through a graphic or otherwise unsettling testimony. Although the prosecutor's use of the evidence was permissible in light of the motions Judge's ruling, the amount of evidence relating to the boys' murders "was far more than necessary" to establish appellant's identity as one of Tyrone Carrington's killers. See Jones v. United States, 625 A.2d 281, 288 (D.C. 1993); Hill v. United States, 600 A.2d 58, 63 (D.C. 1991). We recognize that the prosecutor is not required to "sanitize the government's evidence or make it appear less wrenching than it is," Dixon, supra, 565 A.2d at 77, however, the evidentiary excess present in appellant's case is a clear example of the type of prosecutorial overkill that we warned about in Jones, supra, 625 A.2d at 288. The cumulative effect of the evidence reinforced the prejudice to appellant by exaggerating the relevance of the two boys' slayings to the crimes for which appellant was on trial. The prosecutor's protracted use of the evidence created a trial within a trial: each reference to the children's murders increased the likelihood that the jury would infer guilt of the crimes for which appellant was charged based upon the senseless murders of the two boys. Consequently, the evidentiary excess here virtually insured improper use of the evidence by the jury, despite limiting instructions to do otherwise.

Though jurors are presumed to follow the instructions administered to them, the admission of other crimes evidence is always problematic because "it is difficult, if not at times practically impossible, to avoid its use as preDisposition evidence." Groves, supra, 564 A.2d at 374. The improper inference of criminal propensity was present throughout the entire trial, and the impermissible prejudice to appellant in admitting evidence of the boys' murders was far beyond the curative scope of limiting instructions. "Cautionary instructions, such as the ones given in this case, are designed primarily to blunt permissible prejudice. . . . They cannot cure impermissible prejudice." Williams v. United States, 382 A.2d 1, 7 (D.C. 1978). Because the evidence should have never been allowed by the motions Judge, we are not confronted with the issue of whether the limiting instructions given by the trial court effectively mitigated any "permissible" prejudice from properly admitted evidence. "In the face of seriously prejudicial evidence, curative instructions, particularly those buried within the charge-in-chief at the end of the trial, are of minimal worth." Id. In the present case, it is precisely because the prejudicial effect of the evidence could not be minimized by limiting instructions that the evidence of the boys' murders should have never reached the jury. As this court has noted, one cannot unring a bell," nor can "a drop of ink be removed from a glass of milk." Thompson, supra, 546 A.2d at 425. Once the evidence of the boys' murders was improperly admitted, the fundamental error was made and the trial irreversibly tainted. The manner in which the evidence was used by the government only magnified the error in admitting the evidence.


In determining whether the error in admitting the evidence requires reversal, we must be able to conclude with fair assurance that the "judgment was not substantially swayed by the error." Kotteakos v. United States, 328 U.S. 750, 765, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946). Under the circumstances of this case, we cannot say that the error did not substantially sway the verdict. In addition to the extensive testimony and arguments about the two boys' murders during the trial, the record reflects that one of the questions the jury sent back to the Judge during its deliberations was whether the bullet retrieved from Carlos Carrington during the autopsy had been washed or wiped. Clearly and quite predictably, the evidence influenced the verdict; however, we are not able to conclude that its influence was limited to the only proper purpose for which it was introduced, the issue of identity.


The heinous nature of the murders of the children and the amount of evidence presented on those slayings virtually insured use of the evidence as preDisposition evidence. Further, the government demonstrated no need for the evidence that justified subjecting appellant not only to the inherent prejudice of other crimes evidence but to additional prejudice from the manner in which the evidence was presented at trial. In light of these circumstances, we can not "find it highly probable that error did not contribute to the verdict." Accordingly, we must reverse appellant's convictions and remand the case for a new trial. *fn8

So ordered.

BELSON, Senior Judge, Dissenting: I respectfully Dissent. Appellant William Johnson and his accomplice Bruce Void carried out in an hour or less a criminal scheme to murder their drug trafficking partner, Tyrone Carrington, and then proceed to his girlfriend's apartment, enter it with the key they took from Carrington, and steal drugs, money, and a gun Carrington had stashed there. While there, they encountered Carrington's son and his girlfriend's younger brother and killed them.

In the Superior Court, they were tried and convicted only of the premeditated first-degree murder of Carrington, a drug trafficking conspiracy charge, and a firearms charge. They could not be charged in the District of Columbia with the burglary and the homicides of the boys because they had crossed the state line into Maryland in order to complete their criminal scheme at the apartment there. The majority concludes that although the evidence was relevant to the issue of identity and thus satisfies the threshold requirement of Drew v. United States, *fn1 the trial court committed reversible error in admitting the evidence of the homicides of the boys because, in the opinion of the majority, the trial court abused its discretion in failing to exclude that evidence as unduly prejudicial.

I disagree. The trial court carefully considered the Drew issue and concluded that the evidence of the killings of the boys was a good deal more probative than it was prejudicial. The same Judge reached the opposite Conclusion in the case of the appellant's accomplice, Bruce Void, whose conviction after a separate trial this court sustained in Void v. United States, 631 A.2d 374 (D.C. 1993). I do not think we can say that the trial court's reasoned decision amounted to an abuse of discretion.

Before discussing the balancing of probative value against prejudicial effect, I note that we ruled in Ali v. United States, 581 A.2d 368, 374-77 (D.C. 1990), that where evidence, like the challenged evidence, is not independent of the crime charged a Drew hearing and analysis are not necessary. We observed that this court had previously held:

It is well-settled that evidence of prior bad acts which are criminal in nature, and independent of the crime charged, is inadmissible to prove that a criminal defendant is a person of bad character, and on the occasion charged acted in conformity with his criminal character.

Jones v. United States, 477 A.2d 231, 237 (D.C. 1984) (citations omitted) (emphasis added).

Even if evidence is not classic Drew evidence, however, it is incumbent upon a trial court, if asked, to consider whether its probative value is outweighed by the prejudicial effect it reasonably could be expected to have upon the jury's consideration of the case. Cf. German v. United States, 525 A.2d 596, 607 (D.C. 1987) (citing Campbell v. United States, 450 A.2d 428, 430 (D.C. 1982)). Whether a trial court reaches the Conclusion that evidence qualifies for admission under an exception to Drew (as the majority does here) or finds admissibility on another basis, it must consider that balance before permitting the evidence to go before the jury if requested by counsel to do so.

The fact that we speak of a balancing between probative value and prejudicial effect establishes that we are dealing with two different aspects of the same evidence. It is my perception that sometimes confusion attends both the performance and the description of this process, and that on occasion there is a misapprehension that the very probativity of the evidence is itself prejudicial.

The word "probative" means the tendency that evidence has to prove or disprove an issue or proposition that must be decided by the finder of fact. See WEBSTER'S NEW WORLD DICTIONARY 1132 (2d ed. 1984). "Prejudice," on the other hand, refers to the potential that proffered evidence has for moving the finder of fact to reach a finding not on the basis of a consideration of probative evidence, but rather on the basis of considerations not germane to the truth-seeking process. See id. at 1122. Such evidence tends to move the factfinder to reach a judgment or opinion on the basis of preconception or without regard to the existence of facts that contradict it. See FED. R. EVID. 403 advisory committee's note (defining undue prejudice); Smith v. Executive Club, Ltd., 458 A.2d 32, 40 n.9 (D.C. 1983) (quoting Terry v. Zions Coop. Mercantile Inst., 605 P.2d 314, 323 n.31 (Utah 1979)). It can also refer to matter which will create in the factfinder an animus or ill-will against a party. *fn2 Classic Drew evidence of previous unrelated but similar bad acts that indicate that a party is predisposed to commit an offense of the type charged is prejudicial in the proper sense of the term.

Our focus in this case is upon the evidence of the killing of the two boys -- evidence which is probative of Johnson's guilt but at the same time can be expected to have a prejudicial impact. It is fundamental that it is the function of the trial court to balance probative value against prejudicial effect. The appellate court may review only for an abuse of that discretion, and owes the trial court substantial deference in determining whether there was abuse. See Minick v. United States, 506 A.2d 1115, 1119 (D.C. 1986); Hawkins v. United States, 482 A.2d 1230, 1232 (D.C. 1984).

I turn now to an analysis of the manner in which the trial court performed its function. Initially, the determination that the evidence in question should be admitted in Johnson's trial was made by Judge Eilperin who considered it upon a motion in limine. He reviewed the evidence of the occurrences at the apartment to determine whether there was a clear and convincing showing that Johnson and Void were the persons who had entered the apartment and committed various acts there.

He concluded that the government could show "very, very powerfully that the same person or persons who killed Tyrone Carrington also killed the children on Glassmanor Drive because the same gun was used for both sets of killings" within a short time of one another. He noted that the killer was not a stranger to Tyrone Carrington (he had been riding with Carrington in his Corvette just before the killing), that the persons who entered knew that the Glassmanor apartment was Carrington's girlfriend's apartment, that the persons knew the telephone number of the apartment by heart because telephone calls were placed to the apartment on defendant Void's car telephone, and also on the car telephone that had been in Carrington's Corvette, very shortly after Carrington was murdered. The government showed that the persons who entered the apartment knew that it contained a substantial quantity of drugs and also a gun or guns by bringing out the manner in which the items were seized without a thorough search or ransacking. The trial Judge also noted that the persons gained access to Carrington's apartment by unforced entry and that they could have taken a key to the apartment from Carrington when they murdered him.

The motions Judge also reasoned that the children in the apartment were familiar with the intruders (as they were with Johnson and Void) and that that provided the intruders with a motive for killing the children. Moreover, he noted that when Johnson (but not Void) was arrested after the killing, he had in his possession the nine millimeter gun that inferably had been taken from the Glassmanor apartment. He concluded that evidence of the Prince George's County killings should be admitted. Although defense counsel did not raise the probative-prejudicial balancing issue at the hearing, as he had in his moving papers, the Judge added "that I also considered that the probative value of that evidence does outweigh the prejudicial value by a good deal . . . ."

Eventually, the Judge admitted the evidence of the killing of the children in the Johnson case, but not in the separate trial of Void, because he reasoned that the evidence was more probative of the guilt of Johnson, who had the nine millimeter weapon in his possession upon his arrest. See Void, supra, 631 A.2d at 381-82 n.15. The majority agrees that the probative "strength of the evidence is apparent," majority at [9], but it does not agree "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." The majority states that such an inference diverts the jury's attention from the question of appellant's guilt of the crime charged to the improper issue of his bad character.

I disagree. First I think the majority has concentrated unduly, and I think unconvincingly as well, on the preDisposition factor. The proper focus is on the comparison between the incremental probative value of the evidence and prejudice of any sort that might accrue from bringing the killing of the boys to the attention of the jury. *fn3 If indeed the challenged evidence showed preDisposition, that would be one way of demonstrating prejudice.

The majority's Discussion of preDisposition is unconvincing for several reasons. The shooting of the boys was not something Johnson had done at a prior time and in such fashion as to shed light on a pre-existing inclination toward shooting people, but rather was the final phase of this particular course of criminal conduct. It is quite different from evidence that a person charged with homicide had committed a series of killings over previous years or one charged with armed robbery of a store had previously held up various convenience stores and gas stations -- the classic Drew -type evidence of preDisposition. Instead, it was evidence of an act performed to complete and get away with a premeditated murder and burglary he had just committed.

Routinely, where a defendant commits a final shooting or other illegal act to complete a single criminal scheme or plan carried out as here in continuous sequence in an hour or less, the charges would properly be joined under Super. Ct. Crim. R. 8 (a), and it is most doubtful that a denial of severance under Super. Ct. Crim. R. 14 would be overturned as an abuse of discretion. Indeed, this court has already examined the question of whether such a severance would have been appropriate in this particular scenario and ruled in Void, supra, 631 A.2d at 379, that the events surrounding the apartment break-in and those surrounding the murder of Carrington in his car would have been mutually admissible and therefore severance could properly be denied. See Arnold v. United States, 511 A.2d 399, 404 (D.C. 1986); Sousa v. United States, 400 A.2d 1036, 1040 (D.C. 1979).

It is anomalous that appellant here is having his conviction of first-degree murder reversed because he happened to cross the state line into Maryland before the burglary of the apartment and the commission of other crimes therein. It is highly likely that, if he had committed all the offenses within the District of Columbia, they would have been tried together, and he would now stand convicted of the burglary of the apartment and the murders of the two boys as well as the murder of Tyrone Carrington and the drug and weapon charges.

If the fact that the homicides would have been tried together if they had all been committed within the boundaries of the District of Columbia is not deemed conclusive of the proposition that the evidence in question was not unduly prejudicial evidence of preDisposition, the remaining issue is whether the incremental advantage to the government of proving the killings of the boys, in addition to proving all the other things that Johnson and Void did regarding the apartment burglary, is so insubstantial that we must overturn the trial court's analysis of probative value versus prejudicial effect. The majority opinion recounts all of the evidence other than the killings that ties Johnson into the Glassmanor apartment break-in and thus tends to identify him as the killer of Carrington a short time before. In addition to the factors I mentioned above, it includes evidence that Carrington had indicated a desire to leave the drug trafficking operation he shared with Void and Johnson, and the fact that examination of the spent shells found in the apartment indicated that one of the guns used to kill Carrington was subsequently fired three times in the Glassmanor apartment.

This leads to the question of what the evidence of the killing of the boys added to the showing that whoever murdered Carrington also broke into the apartment, thus tying Johnson more closely to the murder of Carrington. As we have already noted, the trial Judge thought that this evidence was more probative regarding Johnson than Void because Johnson's possession of the nine millimeter gun stolen from the apartment more closely linked him to what happened there. In addition, as the trial Judge pointed out, it can be inferred that the killing of the two boys was carried out to keep them from identifying those who broke into the apartment. *fn4 The boys were very familiar with Johnson and Void. The government argues that the evidence also tended to explain why Crystal Butler, the girlfriend of Carrington and older sister of one of the murdered boys, would be willing to come forward and testify against persons she had known and worked with and thus break the code of silence sometimes observed by persons involved together in illegal activities.

Turning to the other side of the scale, I acknowledge that we observed in Void, with respect to the exclusion of the very same evidence, that "the motions Judge's ruling (excluding evidence of the murder of the boys) 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 . . . . *fn5 Void, supra, 631 A.2d at 383. As I pointed out earlier, however, the same motions Judge who made that ruling in Void reached the opposite Conclusion with respect to the admission of that evidence against Johnson and decided that with respect to him, the probative value outweighed any prejudice.

In weighing the degree of prejudice the defense suffered from the admission of evidence of the boys' murders, it must be acknowledged that the killing of two innocent boys to keep them from identifying the intruders is worse than deplorable, and the jury would undoubtedly think ill of Johnson if it found itself satisfied by the evidence that he committed such inhumane acts. *fn6 It is also true, however, that murders of innocent victims, even of a tender age, seem regrettably to have become more common in our society and are frequently reported by the news media. The trial court gave a limiting instruction about the proper use of the evidence of what occurred at the apartment, reducing somewhat the potential prejudice. Although courts must continue to strike the probative-prejudice balance and avoid the presentation of unduly prejudicial evidence, it is unfortunately true that there will frequently be times when properly instructed juries must decide cases in which evidence of extremely inhumane acts will come before them as part of the evidence that the government or another party should be allowed to present in order to prove its case.

Finally, I address the majority's statement that "excluding the evidence of the murders of the children would have resulted in no real prejudice to the government." Majority at 11. I have already set out above two aspects in which the evidence concerning the children adds to the strength of the government's case. The majority states not only that the evidence was improperly admitted, but also that the government dwelled on it at too great a length. While the reading of the excerpts that the majority includes is unpleasant at best, they are relatively short and do not in full context demonstrate undue emphasis in a trial that lasted over a week.

As to whether the evidence of the killings of the boys was necessary," majority at 10, the fact that the majority is remanding the case to the trial court must mean that the majority takes the view that upon retrial a jury might return a verdict of not guilty. *fn7 Juries, in applying the reasonable doubt standard, can demand a showing of a very high probability of guilt, especially where one is accused of first-degree murder. By whittling down the government's case by excluding evidence that the majority thinks is not "necessary," especially in a case where there are no eyewitnesses and the evidence is purely circumstantial, this ruling incurs for the public some degree of risk that despite the accumulation of evidence against him, Johnson might not be convicted of the murder of Tyrone Carrington.

For the foregoing reasons, I Dissent.

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