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United States v. Frederick Morton

August 9, 2012


Appeal from the Superior Court of the District of Columbia CF125046-09 (Hon. Thomas J. Motley, Motions Judge)

The opinion of the court was delivered by: Thompson, Associate Judge:

Argued February 29, 2012

Before GLICKMAN and THOMPSON, Associate Judges, and STEADMAN, Senior Judge.

This matter is pending in the Superior Court, where defendant Frederick Morton awaits trial on charges of burglary, robbery, kidnapping, and felony murder. In this interlocutory appeal, the government challenges the trial court's ruling that precludes the prosecutor from introducing at trial evidence of defendant's longstanding heroin addiction, circumstantial evidence of his drug use on the day the offenses were committed, and defendant's admission that he committed prior burglaries to support his drug habit. The trial court recognized that defense tactics at trial might "open the door" to some uses of these types of evidence. As a general matter, however, the court excluded the prior-burglary evidence on the ground that it is propensity evidence, the admission of which is prohibited under Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964); and it excluded the drug-addiction evidence on the grounds that it, too, would amount to propensity evidence, that "corroboration cannot be supplied by [defendant's] drug use," and that, in any event, the drug-addiction evidence would be substantially more prejudicial than probative. The government argues that both categories of evidence are admissible as so-called Toliver*fn1 or Johnson*fn2 evidence, contending that defendant's heroin addiction and history of committing burglaries to support his drug habit are closely intertwined with the charged offenses and are necessary to place the charged offenses in context and to make their details understandable to the jury. Alternatively, the government contends, the evidence is admissible, under a Drew exception, as evidence that is probative of motive and identity.

For the reasons explained below, we affirm in part and remand in part. We agree with the trial court that, in light of the government's description of the purpose for which

it would use defendant's admission about prior burglaries, the evidence cannot meaningfully be distinguished from propensity evidence. Therefore, as the trial court ruled, the evidence may not be admitted unless the defense opens the door to such evidence (e.g., as evidence of the defendant's intent, by arguing that the defendant innocently possessed a credit card that was missing and presumably stolen from the crime scene). As to the drug-addiction-related evidence, we agree with the trial court that, standing alone, it is weak evidence of motive and resembles inadmissible propensity evidence. We also are not persuaded that the drug-addiction evidence is needed to make the case understandable to the jury, and we cannot gainsay the trial court's assessment that drug-addiction evidence is highly prejudicial. However, we agree with the government that the trial court did not take into account how, in conjunction with other evidence, the drug-addiction evidence is corroborative of inferences that point to defendant as the perpetrator, is probative of identity, and thus has a legitimate purpose as non-propensity evidence. We conclude that a remand on the issue of the admissibility of the drug-addiction evidence is warranted, so that the trial court may undertake anew its task of weighing the probative value of the evidence against its potential prejudicial effect.


The government expects to present evidence that, on January 21, 1997, between 2:30 and 3:00 in the afternoon, the body of Sharon Moskowitz was found lying on the floor in the front vestibule of the house where she lived, located at 1971 Biltmore Street, N.W. Moskowitz had been strangled a short time before she was found. There were pry marks on the front door of the house, the door jam and lock mechanism were broken, the entire house had been ransacked, and a number of items were missing, including credit cards, pennies and other small change, and jewelry. Among the items not taken were televisions and other electronic equipment, bicycles, cameras, and tools. No fingerprint or DNA evidence was recovered from the crime scene.

The government's theory is that Moskowitz was attacked as she returned home with bags of groceries, interrupting a burglary in process. A crime scene photo shows grocery bags and groceries scattered on the floor around her body. The scattered groceries included an unopened bottle of water and a container of orange juice. The carton of orange juice was open (i.e., its twist-off cap and safety seal had been removed) and was found standing upright. The government theorizes that the perpetrator opened the container and drank some of the orange juice.

Using records obtained from the issuer of one of the missing credit cards, police learned of several transactions with the card that occurred within hours after the murder. The first such transaction occurred at a gas station about 45 minutes after Moskowitz=s body was found. The government apparently has no direct evidence about who used the credit card during that transaction. There was a transaction just before 5:00 p.m. at the Safeway store at the Waterside Mall in the Southwest quadrant of the District.Another of the transactions occurred at a Giant Food store in Marlow Heights, Maryland (the "Marlow Heights Giant") a few hours later. Another occurred at a Giant Food store at 8th and O Streets, N.W. (the "8th & O Giant"), near midnight the same day. Metropolitan Police Department detectives obtained Giant Food video surveillance footage corresponding with the times at which the Marlow Heights and 8th & O Giant

transactions occurred. However, the video footage and photographic stills from the videos are grainy, making it difficult to discern facial features. Surveillance footage from the Marlow Heights Giant captured an individual wearing a gray "PITT" sweatshirt and using the credit card to purchase groceries. Video surveillance footage from the 8th and O

Giant shows an individual wearing a "PITT" sweatshirt accompanied by a woman and shopping for groceries (including orange juice).

Soon after the murder, the video footage obtained from the Marlow Heights Giant was broadcast by "America's Most Wanted" and other media outlets. The broadcasts did not lead to information that enabled police to identify the man in the "PITT" sweatshirt shown in the video.However, responding to one of the media broadcasts, an individual by the name of Morris Brown informed police in February 1997 that, on the day of the murder, at approximately 6:00 p.m., he was in the parking lot of a liquor store when an individual wearing a "PITT" shirt, whom he referred to as "Shorty," approached him and offered to buy him groceries in exchange for cash. Brown, who is now deceased, told police that he accepted the offer and then drove "Shorty" to the Marlow Heights Giant. There, Brown spent about twenty minutes selecting groceries and then waited in his car while "Shorty" paid for the groceries. Brown informed police that he gave "Shorty" $40 in exchange for nearly $200 worth of groceries. Brown told police that he did not know "Shorty=s" true identity.

Twelve years passed before police received information that pointed them to defendant Morton. For reasons not explained in the record, the video surveillance footage from the 8th & O Giant was not broadcast by the media until 2009. In August 2009, another witness, whom the arrest warrant affidavit refers to as "W-4," provided information that, on January 21, 1997, the day of the murder, a man wearing a "PITT" sweatshirt approached him and offered to buy him groceries in exchange for cash. W-4 drove the man to the Waterside Mall Safeway. W-4 selected groceries and then left his shopping cart with the man, exited the store, and waited outside the store. Thereafter, W-4 gave the man $80 in exchange for $200 worth of groceries. Police were unable to recover video surveillance footage from the Waterside Mall Safeway, but they showed W-4 still photographs of the individual wearing the gray "PITT" sweatshirt captured from the Marlow Heights Giant video. W-4 identified the individual wearing the gray "PITT" sweatshirt as the same man from whom he had purchased groceries at the Waterside Mall Safeway.*fn3 W-4 also told police that the man "sniffled and acted jumpy as if he had a drug problem, specifically a heroin addiction." In November 2009, in response to a television broadcast of the 8th & O Giant surveillance video, another witness (whom the arrest warrant affidavit refers to as "W-5") identified the man in the "PITT" sweatshirt and the woman accompanying him. W-5 identified the woman as W-5's good friend Joan Williams and identified the man in the "PITT" sweatshirt as "Butch," a man with whom Williams (who died of a heroin overdose in October 2009) had lived for at least nine months in 1997 (including at the time of the murder).*fn4 W-5 told police that W-5 and Butch used heroin together and that Butch "made money by cashing stolen checks and other illegal scams."When shown a photograph of defendant Morton, W-5 told police, "that's Butch right there."A police records check revealed that defendant Morton used the nickname "Butch."

Two other witnesses also saw the broadcast of the 8th & O Giant surveillance video and came forward to identify the man in the "PITT" sweatshirt as defendant Morton. One of these witnesses ("W-2") is a family member of defendant.*fn5 The second ____________________ of these witnesses, referred to as "W-3," told police that the witness had known defendant, both by his nickname and legal name, "for decades," since they were teenagers, and that in their "young years," the witness joined Morton in using drugs and committing criminal "capers," including burglaries, to obtain drugs.The 8th & O Giant video shows the man in the "PITT" ...

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