Appeal from the Superior Court of the District of Columbia, (F5777-02) (Hon. John H. Bayly, Jr., Trial Judge)
The opinion of the court was delivered by: Nebeker, Senior Judge
Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY, Associate Judge, and NEBEKER, Senior Judge.
Appellant Edward Nellson was convicted of conspiracy to commit murder in violation of D.C. Code § 22-1805a (2001); first-degree burglary while armed in violation of D.C. Code §§ 22-801 (a), -4502; armed robbery in violation of D.C. Code §§ 22-2801, -4502; felony murder (predicated on first-degree burglary while armed) in violation of D.C. Code §§ 22-2101, -4502; felony murder (predicated on armed robbery) in violation of D.C. Code §§ 22-2101, -4502; premeditated first-degree murder while armed in violation of D.C. Code §§ 22-2101, -4502; and two counts of carrying a dangerous weapon (a wooden stick and ligatures) in violation of D.C. Code § 22-4504 (a) in relation to the murder of Daniel Krug. The jury also concluded that the murder was especially atrocious, heinous, or cruel under D.C. Code § 22-2104.01 (b)(4). On appeal, appellant contends that the trial court erred in permitting the United States to introduce evidence of appellant's involvement in a prior, similar crime under the signature crime exception. We affirm.
The evidence at trial showed that Daniel Krug, a George Washington MBA student, was found strangled to death in his Foggy Bottom apartment on June 1, 2002. Krug's eyes, neck, hands, and ankles were bound with a combination of black duct tape, strips of sheet cut from his futon, black cable ties, an electrical cord from a nearby television set, and a pair of boys size 14 underwear. Krug also suffered a head trauma consistent with being hit with a police baton. Police recovered a knife, black cable ties, and Krug's cell phone from the apartment's bathroom. Two partially smoked cigarettes were found in the apartment, and DNA testing proved that appellant was the source of the saliva on both of them. Krug's apartment door showed no sign of forced entry, and the three windows of the apartment opened onto an alley, with pipes running from the kitchen window to the ground, allowing a person to climb into the apartment.
For the six months preceding Krug's death, appellant and Stephen Burciaga,*fn1 a University of Maryland student, had been making hypothetical plans to commit robberies. Appellant had moved into Burciaga's rented room on May 22, 2002, and on May 30, 2002, appellant made plans to rob prostitutes who advertised their services as masseuses, one in the District of Columbia and two in Virginia, using Burciaga as the getaway driver. Appellant and Burciaga then drove to two of the locations advertised: one building in Virginia and one in Foggy Bottom. After visiting one Virginia location, appellant decided that the two locations in Virginia were inappropriate for a robbery, but told Burciaga that they would return to Foggy Bottom later that night. At 2:00 a.m., on May 31, 2002, the two returned to the Foggy Bottom location and appellant left the car alone with a duffle bag packed with a baton, duct tape, black cable ties, clothing, and a pistol. Appellant told Burciaga that he had the access code to the building and that he could climb through windows. While Burciaga waited for four hours in the car, he sent numerous text messages from his cell phone to appellant's cell phone, exhorting appellant to hurry up and return. At approximately 5:00 a.m., appellant called Burciaga to report that he would be returning soon from a phone number that Burciaga did not recognize. Appellant returned to the car at 6:00 a.m. and told Burciaga various stories, stating that he had robbed and/or killed a prostitute and/or a pimp. Appellant returned with a laptop, credit cards, and $10 in quarters.
Appellant was arrested in Ocean City, Maryland on June 3, 2002. Police found on appellant's person receipts for purchases linked to Krug's credit card, toiletry items purchased with Krug's credit card, a loaded pistol, a gun holster, two magazines with ammunition, a wooden baton covered in black tape, a box cutter, 3 rolls of black duct tape, a ski mask, two cell phones, a lighter, and a wallet. Pursuant to a search warrant executed on Burciaga's room, police recovered Krug's stolen laptop, with the new user name "Ed," and appellant's duffel bag containing a shotgun. Appellant was also linked to Krug's murder through a number of purchases and ATM withdrawals of cash that he and Burciaga made with Krug's credit card.*fn2 In addition, cell phone records showed text messages between appellant's and Burciaga's cell phones and phone calls between Krug's and Burciaga's cell phones in the early morning hours of May 31, 2002.
Before appellant's trial, the government filed notice of its intent to introduce evidence regarding, inter alia, appellant's involvement in a burglary that occurred in Alexandria, Virginia, approximately five months before Krug's murder. The appellant had confessed to committing the Alexandria burglary, and the trial court listened to a tape of his confession. In that burglary, appellant rappelled down the side of a seventeen story building in the middle of the night, into a top floor apartment. He was joined by two others and together, they used plastic cable ties and duct tape to bind the two residents's hands and feet, and placed a pillow case and a cap over the victims's eyes and face. Appellant kicked one victim several times, demanding PIN numbers for his credit cards. Appellant stole from the apartment a computer, a baseball card collection worth several thousand dollars, credit cards, and money. One victim was badly beaten, his throat was cut, and his hands were blue from tight bindings. Appellant claimed that he committed the Alexandria burglary because he knew and did not like the victim that he violently abused.
The government argued to the trial court that evidence of the Alexandria crime was admissible at trial to prove identity, pointing out the similarities between the crimes. The trial court told defense counsel to assume that the evidence of the burglary would be admitted, but deferred ruling on the issue until the close of the government's evidence. The government did not refer to the Alexandria burglary in its opening statement, but defense counsel stated in its opening that appellant had committed the Alexandria burglary, had told Burciaga about the burglary, and Burciaga had murdered Krug using appellant's signature techniques to frame appellant.
The parties again discussed the admissibility of the Alexandria burglary with the court before one of the Alexandria victims was to testify. The government argued that the evidence of the Alexandria burglary should be admitted to show a common scheme or plan and the absence of mistake in light of the defense theory that appellant had been framed. The court ruled that evidence of the Alexandria burglary could be admitted through the testimony of one of the victims. The court opined that the use of duct tape and cable ties to bind the victims was "probably at the heart of it, along with these other aspects of it. They're not exactly the same but I think they're close enough that it should be admitted." The court warned the prosecutor to keep the Alexandria burglary victim's testimony narrow to reduce potential prejudice. The court also gave a limiting instruction to the jury immediately after the victim testified, and once again after the introduction of appellant's recorded confession and the testimony of an Alexandria police officer.
Appellant testified at trial that he is 5 feet tall and weighs 107 pounds. He testified that when he was in jail for a 1995 conviction of armed robbery, gang members taught him how to plan and execute home invasions by restraining occupants quickly using cable ties and duct tape, and by immediately covering the victims's eyes. He stated that he developed additional burglary skills after prison, including entering apartments from outside through a window or balcony. Appellant spoke of his practice of targeting prostitutes and drug dealers and of using a getaway car in his robberies. He testified in detail about his primary role in planning and executing the Alexandria burglary.*fn3 He also testified about accompanying Burciaga to Krug's home on the night of the murder, but denied killing him. Appellant implicated Burciaga in the murder.
In closing, defense counsel argued that the details of Krug's murder were different from the techniques appellant admitted to using in his many burglaries, so that the murder must have been committed by someone who was "mimicking" appellant's other crimes. ...