Appeal from the Superior Court of the District of Columbia (F-1513-98) (Hon. Nan R. Shuker, Trial Judge)
Before Farrell and Glickman, Associate Judges, and Pryor, Senior
The opinion of the court was delivered by: Pryor, Senior Judge
After a trial by jury, appellant appeals from his conviction of involuntary manslaughter, D.C. Code § 22-2405 (1996 Repl.), as a lesser-included offense of the second-degree murder charge in the indictment. Appellant contends the trial judge committed an abuse of discretion in allowing "prior bad acts" evidence to be admitted over his objection. We find no error in the judge's ruling to allow the evidence, and therefore, affirm appellant's conviction.
On August 12, 1997, appellant Willis Curry was driving a loaded twenty-eight and one-half ton dump truck eastbound on Military Road in the District of Columbia. As Curry approached the intersection of Military Road and Nevada Avenue on his third trip of the day, he attempted to stop the truck, but was unable to do so. Eyewitnesses heard the truck's horn and the screeching of its brakes. After entering the intersection, the dump truck struck a 1997 Cadillac, and then overturned onto a nearby Plymouth, killing the sole occupant of the Plymouth, Benjamin Cooper. Curry was taken to a nearby hospital and treated for minor injuries.
Prior to trial, the government, relying on Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964), informed the defense and the trial court that it intended to introduce evidence of Curry's driving record, which demonstrated that he had accrued eight traffic violations in the sixteen months prior to the fatal collision, *fn1 and of a nonfatal traffic collision on July 14, 1997, that involved Curry operating the same dump truck as in the collision which killed Cooper. On that date, Curry was attempting to stop at an intersection in Maryland when the brakes on the dump truck failed. Swerving to avoid a collision with a stopped vehicle, Curry navigated the truck over the median and into a collision with another vehicle in the oncoming lane. Investigators concluded that the brake failure on that occasion arose from a severed air hose; the owner of the truck was called to the scene to repair it.
In a written pretrial order addressing the Drew questions, the trial judge noted that she reviewed the proffered evidence to determine its probative value with respect to the offense charged. She noted specifically that "the Court must make a separate determination that the prejudicial effect upon the defendant does not substantially outweigh the probative value before admitting it." The trial judge decided to admit the evidence of Curry's past convictions and his July accident, with appropriate limiting instructions, as probative on the issue of malice, an essential element of the charge of second-degree murder.
At trial, at least four individuals who had the opportunity to drive or inspect the truck after the collision testified that there were signs of significant problems with the truck's brake system. *fn2 There was also testimony that the steering system was not operating as it should. While the posted speed limit for the relevant stretch of road was twenty-five miles per hour, one of the government's expert witnesses calculated that Curry must have been driving at a rate in excess of thirty-three miles per hour at the time he attempted to stop the truck. The same reconstructionist determined that the truck was likely traveling at a minimum of twenty-six miles per hour when it started to roll over on its side.
At the time of the collision Curry possessed a Class B commercial driver's license, which permitted him to drive the truck in question. As a commercial truck driver, Curry was required to conduct an inspection prior to the operation of his truck, including an evaluation of the truck's brake system. Curry also was obligated to inspect the truck at the end of every workday and record and report any problems to his employer. Indeed, his obligation to inspect the truck prior to its operation included a review of any post-trip comments from the previous day and a verification of whether any corresponding repairs were undertaken. If a serious problem was noted in the inspection or if any necessary repairs had not been made, Curry, as a commercial truck driver, was under an obligation to take remedial action or decline to operate the vehicle. Such reports, often referred to as "log books," are normally kept in each truck. No such log book was found in the truck involved in the collision, nor did the owner of the vehicle, Curry's employer J&D Byrd Trucking Company, possess any post-trip inspection reports for the three months preceding the collision. In addition to evidence bearing on the estimated speed of appellant's vehicle, and expert testimony describing defects in the truck's brake system on the day of the fatal collision, the evidence of both Curry's driving record and the incident on July 14, 1997, was admitted over defense counsel's objection, accompanied by limiting instructions.
Curry testified that he had completed both the pre- and post-trip reports for the truck in question. Specifically, he testified that he had told his employer about a need for repairs on August 11, 1997, the day before the collision. According to Curry, during his pre-trip inspection on August 12, 1997, he noticed two new slack adjusters in the brake system which he believed were added in response to his post-trip report from the day before. Appellant's position at trial was that the brake failure in this instance was sudden and unexpected. Accordingly, the defense moved unsuccessfully for a judgment of acquittal as to murder on the ground that proof of malice was lacking. Ultimately, the jury found Curry not guilty of second-degree murder, but guilty of the lesser-included offense of involuntary manslaughter. Curry was sentenced to a term of imprisonment.
Appellant contends the trial judge abused her discretion and committed error by allowing the prosecution, in the presentation of its case, to offer evidence regarding an earlier vehicular collision involving appellant's operation of the same vehicle, as well as evidence of prior convictions for excessive speed and signal violations. In addressing appellant's contention, we consider for the first time whether so-called Drew evidence of prior bad acts is admissible to prove malice, an essential element of second-degree murder, where the prosecution's theory of malice is not that the defendant actually ...