Appeals from the Superior Court of the District of Columbia (F-10334-93, F-10335-93, F-10301-93) (Hon. Gladys Kessler, Trial Judge)
Before Ruiz, Reid and Glickman, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
Argued September 13, 2001
After a jury trial, appellants Clark Brooks, Kelvin Sanders and Robin Robinson were convicted of multiple gun-related crimes, including armed robbery. *fn1 Appellants main contentions are that the trial court: (1) improperly admitted "other crimes evidence" through the introduction of a videotape made approximately three weeks prior to the commission of the charged crimes; (2) abused its discretion by allowing lay witnesses to offer opinion testimony concerning the identification of persons depicted in a store surveillance videotape and still photographs from the videotape; and (3) committed reversible sentencing errors. We generally affirm the judgment of the trial court as to the challenged aspects of the trial, but remand these cases to the trial court for resentencing, consistent with this opinion.
The government presented evidence showing that on the evening of September 27, 1993, Messrs. Sanders, Brooks, Robinson, and Donald Fletcher *fn2 robbed the KNT jewelry store, located at 7608 Georgia Avenue, in the Northwest quadrant of the District of Columbia, and its occupants. Mr. Robinson remained outside while the other men entered the store which was then occupied by the owner, Ms. Kim Thi Nguyen, her husband Mr. Chanh Ngo, and their daughter-in-law, Ms. Thuy Nguyen. One of the women opened the security door for the three men, believing they were customers. The events that subsequently took place were recorded by the store's video monitoring system.
Following the admission of the three men into the store, the men asked to see some of the jewelry, including wedding rings. As Ms. T. Nguyen revealed the price of a ring, Mr. Ngo entered the display area. Mr. Brooks pointed a gun at him and pushed him to the ground. He then knocked Mr. Ngo unconscious by striking him with the gun. Another man grabbed Ms. K. Nguyen and shoved her to Mr. Brooks, who struck her with the gun, also knocking her unconscious. Ms. T. Nguyen maneuvered to help her family, and Mr. Brooks kicked her.
Mr. Fletcher jumped behind the counter, broke the display cases and removed the jewelry. *fn3 As the men attempted to leave, Mr. Fletcher noticed Mr. Ngo crawling forward. Mr. Brooks shot him three times, and then hit the glass door with gunfire, allowing the men to flee.
When the men left the store, Ms. T. Nguyen called 911 to report the crime. She described the men generally as one "fat" male and two "skinny" males, and one of the men as weighing around 150-160 pounds. None of the store's occupants could identify any of the defendants, but Mr. Guy Greene, who had just gotten off of a Georgia Avenue bus at the time of the incident, testified that he identified the picture of Mr. Robinson as the man he saw driving away from the store in a tan Jeep. *fn4 In addition, a Montgomery County police officer, who was on nearby surveillance duty at the time of the incident, stated that as he drove past the 7600 block of Georgia Avenue, he saw a tan Jeep outside the jewelry store. He identified Mr. Robinson's Jeep as the vehicle that he had seen.
The following week, all four men were arrested based upon evidence derived from the investigation of the store robbery. The police discovered Messrs. Sanders' and Brooks' palm prints at the store. Mr. Ngo identified a watch found at Mr. Brooks' girlfriend's apartment as one stolen from the store. Several lay witnesses identified the appellants from the store's surveillance videotape. In addition, Ms. Judy Gross testified that she saw the appellants divide up the stolen jewelry in her apartment.
In early October, Mr. Brooks encountered Mr. Fletcher in the dining room of the D.C. Jail. Mr. Brooks complained that Mr. Fletcher was talking about the incident and said that he should kill Mr. Fletcher; Mr. Fletcher felt that he had been threatened. In December 1993, Mr. Fletcher and Mr. Robinson were taken to the courthouse. Mr. Robinson approached Mr. Fletcher, and told him that he would pay Mr. Fletcher for not testifying against him.
We first set forth facts pertinent to the "other crimes" issue raised by Mr. Brooks. At trial, the government called Ms. Michi Whitfield, who had known Mr. Brooks "all [of her] life," and was his former fiancee, to establish that Mr. Brooks possessed a gun prior to the September 27 robbery. Her testimony focused on the period from June 1993 to mid-August 1993. During that time, she had an intimate relationship with Mr. Brooks, and saw him as well as his 9 millimeter Beretta gun "every day." He also showed her a picture of a Berretta in a book. She described the place where Mr. Brooks kept the gun in his house. When asked whether her relationship with Mr. Brooks ended "in part because he . . . pulled a gun on you," she responded, "Yes." She went on to recount how Mr. Brooks had called her to his basement, and "pointed the gun to [her] head" as she sat on the sofa. Unknown to Ms. Whitfield at the time, a videotape camera recorded the event. She acknowledged that she had viewed the videotape later on the day of the incident. The government presented the portion of the August 1993 videotape, which showed Mr. Brooks holding a gun near Ms. Whitfield's head, and she confirmed that it accurately depicted the event. Initially, the court admitted only this portion of the videotape.
On cross-examination, Ms. Whitfield said that she had been engaged to Mr. Brooks but that he had taken the engagement ring back on the day of the incident with the gun in August 1993. She denied that Mr. Brooks had discovered she was seeing another man. In response to defense counsel questioning, she acknowledged that the "tape is much longer than the three or four minutes . . . seen so far," and that she "kn[e]w what [was] on the rest of the tape." When defense counsel proceeded by asking her what happened after the gun-pointing episode, she testified that she and Mr. Brooks had sexual intercourse.
At the end of the cross-examination, the government argued that the cross-examination had undermined Ms. Whitfield's credibility, left the jury wondering about the remainder of the videotape, and thus, opened the door to evidence about the subsequent footage. The court agreed and the portion of the tape depicting Ms. Whitfield leaving Mr. Brooks' house naked was shown. After this portion of the tape was played, Ms. Whitfield testified that she had intercourse with Mr. Brooks because she was afraid of him and that he forced her to walk home naked because he kept her clothes. *fn5
Mr. Brooks argues that the videotape depicted prior uncharged bad acts and thus falls under the strictures of Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964). He challenges both the initial limited introduction of the videotape, as well as the subsequent ruling that defense counsel had opened the door to admission of the entire tape.
"A decision on the admissibility of evidence, of course, is committed to the sound discretion of the trial court, and we will not disturb its ruling absent an abuse of discretion." Smith v. United States, 665 A.2d 962, 967 (D.C. 1995) (citations omitted). Nonetheless, we have long adhered to the principle that: "If evidence of prior bad acts that are criminal in nature and independent of the crime charged is offered to prove predisposition to commit the charged crime, it is inadmissible." Johnson v. United States, 683 A.2d 1087, 1092 (D.C. 1996) (en banc) (citing Drew, 118 U.S. App. D.C. at 15-16, 331 F.2d at 89-90). But, Drew is not applicable where the challenged "evidence (1) is direct and substantial proof of the charged crime, (2) is closely intertwined with the evidence of the charged crime, or (3) is necessary to place the charged crime in an understandable context." Johnson, supra, 683 A.2d at 1098.
Here, the government initially sought the admission of the videotape to demonstrate that Mr. Brooks "in the days, weeks, and months before the [Georgia Avenue jewelry store] robbery . . . possessed a nine millimeter pistol[,] . . . and armed himself with the gun on the day of the robbery and . . . used it in the course of the robbery." Mr. Brooks sought to exclude the evidence of the gun under Drew, and also argued that its admission would be substantially more prejudicial than probative. In Busey v. United States, the trial court admitted testimony that the defendant had possessed a weapon that may have been the murder weapon. 747 A.2d 1153 (D.C. 2000). We declared that:
The testimony that [the appellant] possessed a revolver that might have been the murder weapon was not admitted improperly to establish criminal propensity. That evidence was directly relevant, and was not Drew evidence, because it constituted evidence supporting the charge that [the appellant] was the person who [committed the charged crimes]. Id. at 1165; see also Bright v. United States, 698 A.2d 450, 455-56 (D.C. 1997).
Similarly, the evidence of Mr. Brooks' possession of the nine millimeter gun supported the charge that Mr. Brooks used that same gun in the robbery of the jewelry store. Therefore, the videotape showing Mr. Brooks with the gun arguably was admissible as direct and substantial proof of the charged crimes. See also, Johnson, supra, 683 A.2d at 1097 ("'An accused person's prior possession of the physical means of committing the crime is some evidence of the probability of his guilt, and is therefore admissible.'" (quoting Coleman v. United States, 379 A.2d 710, 712 (D.C. 1977))).
However, the analysis does not end here. "The one requirement that applies to the admission of all evidence of 'other crimes,' Drew and non-Drew alike, is that relevance, or probative value, must be weighed against the danger of unfair prejudice." Busey, supra, 747 A.2d at 1165. "In weighing the probative value of evidence versus potential prejudice to the defendant, this court has adopted the standard . . . in the other crimes context: 'evidence [otherwise relevant] may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice it poses.'" Id. (quoting Johnson, supra) [alterations in original]. "This balancing of probative value and prejudice is committed to the discretion of the trial judge, and this court will review it only for abuse of that discretion." Id. (citation omitted).
Here, the trial court arguably may have erred by determining that the probative value of the videotape was not substantially outweighed by its prejudicial effect when it initially allowed the videotape, showing Mr. Brooks pointing a gun at Ms. Whitfield, to be played during Ms. Whitfield's direct examination. *fn6 "[A]ppeals to the passions of the jury, such as the presentation of evidence of threats against a witness [has] the potential for great prejudice against the defendant." Mercer v. United States, 724 A.2d 1176, 1184 (D.C. 1999) (citations omitted). Moreover, evidence of a violent and threatening act with a handgun may have a substantial impact on a jury. Where the government has presented other unimpeached oral testimony, as here, that the defendant possessed such a handgun, it may have been unnecessary for the jury to have been presented with such potentially inflammatory evidence during Ms. Whitfield's direct testimony.
We need not determine whether the trial court erred in permitting the jury to see the portion of the videotape showing the gun during the direct testimony of Ms. Whitfield, because, even assuming it did, Mr. Brooks was not sufficiently prejudiced by this error to justify reversal of his convictions. See Hollingsworth v. United States, 531 A.2d 973, 978 (D.C. 1987) ("When the trial court's error is not so extreme as to require reversal by itself the reviewing court must weigh the severity of the error against the importance of the determination in the whole proceeding and the possibility for prejudice as a result.") (citation and quotations omitted). Several other witnesses testified that Mr. Brooks possessed a handgun. Of particular import, the trial court, sua sponte, provided extensive limiting instructions to the jury to mitigate the prejudicial impact of the evidence. The court cautioned the jury:
Ladies and gentlemen, you have heard and seen evidence that the defendant, Mr. Clark Brooks, held a gun in his hand and that he put that gun to the head of Michi Whitfield. It is up to you to decide whether to accept that evidence. If you find that Mr. Brooks did hold that gun in his hand or that he did put it to the head of Ms. Whitfield, you may consider it only for the limited purpose of deciding whether Mr. Brooks possessed a gun. You may not consider this evidence for any other purpose.
Mr. Brooks has not been charged in this case with any offense related to holding the gun in his hand or putting it to the head of Michi Whitfield and you may not consider this evidence to conclude that he has a bad character or that he has a criminal personality.
The law does not allow you to convict the defendant simply because you believe that he may have done bad things not specifically charged as crimes in this case. Mr. Brooks is on trial for the crimes charged and you may use the evidence of acts not charged only for the limited purpose of helping you decide whether he possessed a gun.
Furthermore, the government's closing argument was restrained with respect to the videotape showing the gun, referring to the videotape only with for the purpose of demonstrating Mr. Brooks' possession of the gun.
Added to the trial court's cautionary instruction and the government's restrained closing argument is the strength of the government's case. The incident at the Georgia Avenue jewelry store was videotaped, and a stolen watch was found in the apartment of Mr. Brooks' girlfriend. Also, the government presented accomplice testimony which was corroborated by eyewitness testimony, as well as testimony that revealed that Mr. Brooks' palm prints, as well as those of Mr. Sanders, were found on the glass jewelry cases at the store.
We now turn to the trial court's admission of other segments of the videotape. Subsequent to the introduction of the portion of the videotape showing Mr. Brooks pointing the nine millimeter gun, and during cross-examination, as we have seen, Mr. Brooks' counsel questioned Ms. Whitfield's credibility by alluding to her sexual encounter with Mr. Brooks that afternoon, and also suggested that Ms. Whitfield was angry because Mr. Brooks broke off their engagement that day. The trial court admitted the videotape because "there's no question that the door was opened." *fn7
The government argues that the trial court properly admitted the remainder of the videotape under the narrow doctrine of curative admissibility. We agree. We have previously allowed for the introduction of inadmissible evidence in limited circumstances: "Introduction of otherwise inadmissible evidence . . . is permitted 'only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence.'" Mercer, supra, 724 A.2d at 1192 (citations and other quotations omitted). Here, the trial court properly exercised its discretion in determining that the jury was wondering about "what else is on that tape," and in allowing a substantial part of the remainder of the videotape into evidence, because it corroborated Ms. Whitfield's testimony on direct examination, which had been impeached on cross-examination, and corrected the impression that the government was intentionally hiding the contents of ...