Gates v. United States, 82-1529.

• Decision Date: 21 August 1984
• Docket Number: No. 82-1529.,82-1529.
• Citation: 481 A.2d 120
• Parties: Donald E. GATES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

481 A.2d 120

Donald E. GATES, Appellant, v. UNITED STATES, Appellee.

No. 82-1529.

District of Columbia Court of Appeals.

Argued April 4, 1984.

Decided August 21, 1984.

Hamilton P. Fox, III, Washington, D.C., for appellant.

Robert H. Klonoff, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before NEWMAN, Chief Judge,^* NEBEKER, Associate Judge, and GALLAGHER, Associate Judge, Retired.

NEBEKER, Associate Judge:

Appellant was indicted on the following charges: attempted armed robbery, D.C. Code §§ 22-2902, -3202 (1981); rape while armed, id. §§ 22-2801, -3202; first degree murder while armed, id. §§ 22-2401, -3202; felony murder, id.; and carrying a pistol without a license, id. § 22-3204. A jury found him guilty of the armed rape, murder and pistol offenses. He was sentenced to fifteen years to life (rape), twenty years to life (murder, concurrent with the rape sentence) and three to ten years (pistol, consecutive to the other sentences). Before us now, he challenges: (1) the admission of certain "other crimes" evidence offered by the prosecution; (2) the nonadmission of certain "other crimes" evidence which he sought to introduce; (3) the alleged withholding by the government of evidence; (4) asserted improper statements by the prosecution during its closing argument; and (5) sufficiency of evidence regarding the nature of the weapon involved in the crime. We perceive no reversible error among the assignments made by appellant and, accordingly, affirm.

I

Catherine Schilling, a twenty-one-year-old student at Georgetown University, was raped and killed sometime after she left work at the Watergate complex, on June 22, 1981. Her body was found on a bank of the Rock Creek with five bullet wounds to the head and sperm in her vagina. Her purse lay nearby, apparently undisturbed. A paid informant told police that a man, identified before and at trial as the appellant, had told the informant that: he had tried to rob "a young, pretty white girl;" she resisted, so he raped her; after reflection on the consequences of his actions, he shot her and left her in a park. (Tr. at 10-12).

At trial, the prosecution presented, inter alia, testimony from the informant, a hair and fiber analyst, a serologist and a woman who had been assaulted by appellant in June 1981. The defense presented, inter alia, its own expert testimony on pubic hair matching and serology.

I

A.

Appellant challenges the admission of other crimes evidence introduced by the government. Miss Nancy Benoff testified at trial that on June 3, 1981, she left her job at the Kennedy Center and walked along Rock Creek Parkway towards the canal towpath. It was rush hour, about 4:15 p.m. The appellant followed her. As she was about to turn on to the towpath he grabbed her from behind and attempted to snatch her purse. She resisted. He then seemed to lose interest in the purse while he grabbed her by the shoulders, pushed her down into the grass, laid on top of her and nuzzled his face against hers. Benoff continued to clutch on to her purse while she screamed wildly. Help came, apparently within seconds. Appellant was arrested and a search of his clothes produced from a pocket an unsheathed knife with a blade length of four to five inches.¹ Appellant subsequently pled guilty to attempted robbery in connection with the incident.

Several steps were taken during the trial to impress upon the jury the idea that this other crimes evidence was admitted to show only intent, identity or common plan or scheme, and not to show a predisposition towards criminal acts. First, the jurors were specially examined during voir dire as to whether each felt able to apply the evidence in the prescribed, limited manner. Second, a cautionary instruction was administered immediately after the testimony was received. Third, counsel for both sides included mention of the limited use in their closing arguments. And the trial court's final charge to the jury included the standard limiting instruction.²

The defense's pretrial efforts to prevent admission of this evidence failed; the trial court found, based on Calaway v. United States, 408 A.2d 1220, 1225-27 (D.C.1979), sufficient similarities, and it concluded that the probative value outweighed any prejudicial effect. Specifically with regard to the similarities, the trial court found the following: (1) the locations of the assaults were within a few hundred yards of each other; (2) they occurred only nineteen days apart; (3) both victims were white females in their twenties (carrying shoulder bag purses); (4) both victims were walking along the same path; (5) both assailants were armed, albeit one with an unopened knife and the other a gun; (6) both incidents began as robberies and became sexual assaults; (7) both occurred when traffic was heavy on the Rock Creek Parkway — Benoff during evening rush hour and Schilling as a concert crowd was leaving the Kennedy Center; and (8) the pubic hairs of the assailant and that recovered from the victim's body matched.

Appellant launches extensive attacks on each similarity found by the trial court, and he further argues that the prejudicial effect of admitting the evidence outweighed any probative value. The government counters that the sum of the similarities suffice under extant case law to establish identity, intent and common scheme or plan and that any prejudice is outweighed by the probative value of the evidence, particularly in light of the prophylactic efforts taken by the court and the prosecutor at trial. We conclude, admitting the closeness of the question in this case, that the trial court did not err in admitting this other crimes evidence.

B.

The seminal case in our jurisdiction, Drew v. United States, 118 U.S.App. D.C. 11, 15-16, 331 F.2d 85, 89-90 (1964), succinctly sets out the doctrinal concerns:

It is a principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged. Since the likelihood that juries will make such an improper inference is high, courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose. . . .

Evidence of other crimes is admissible when relevant to (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial. When the evidence is relevant and important to one of these five issues, it is generally conceded that the prejudicial effect may be outweighed by the probative value. [Footnotes omitted; emphasis in original.]

In addition, the admission of other crimes evidence need not depend on the presence of one distinctive similarity but the court can consider the totality of the factual circumstances which, amalgamated, lay a sufficient basis for admission under the Drew doctrine. Warren v. United States, 436 A.2d 821, 833 (D.C.1981) (citing Bridges v. United States, 381 A.2d 1073, 1078 (D.C. 1977), cert. denied, 439 U.S. 842, 99 S.Ct. 135, 58 L.Ed.2d 141 (1978)); Calaway v. United States, 408 A.2d 1220, 1226-27 (D.C.1979). Also, the probative value of the evidence offered must be weighed against its prejudicial effects. Willcher v. United States, 408 A.2d 67, 75 (D.C.1979). Finally, we recognize our standard of review is whether the trial court abused its discretion in admitting the evidence. Id. at 75; United States v. Bobbitt, 146 U.S.App. D.C. 224, 228, 450 F.2d 685, 689 (1971).

In this case we find sufficient similarities: (1) the locations of the assaults were within a few hundred yards of each other, along the towpath, see Warren v. United States, 436 A.2d 821, 832-33 (D.C.1981); Bowyer v. United States, 422 A.2d 973, 977 (D.C.1980); Bridges v. United States, supra, 381 A.2d at 1078; (2) a nineteen day hiatus separated the crimes, see Brooks v. United States, 448 A.2d 253, 256 (D.C. 1982); Calaway, supra, 408 A.2d at 1227; Willcher, supra, 408 A.2d at 77; (3) both victims were white females in their twenties, see Warren, supra, 436 A.2d at 832; Bowyer, supra, 422 A.2d at 977; Calaway, supra, 408 A.2d at 1226; (4) record testimony³ revealed that both incidents began as robberies but turned into assaults, see Brooks, supra, 448 A.2d at 257; Arnold v. United States, 358 A.2d 335, 338-39 (D.C. 1976) (en banc); (5) at least nearby auto traffic was heavy at the time of the assaults evidencing boldness, see Warren, supra, 436 A.2d at 832-33; Bridges, supra, 381 A.2d at 1078. The calculus of these factors establishes sufficient basis for the common plan or scheme or identity prongs of the Drew test.

Appellant further argues that whatever probative value this evidence has, that value is outweighed by the prejudicial effect of the admission of this evidence. It is but a truism that any probative evidence is inherently prejudicial. The court in Drew was certainly cognizant of such prejudicial effects but went on to allow "relevant and important evidence that fell into one or more of the prescribed categories." Drew, supra, 118 U.S.App.D.C. at 16, 331 F.2d at 90. Here, the evidence is clearly probative, i.e., certainly identity was relevant and this evidence was material to that issue. Willcher, supra, 408 A.2d at 75. Moreover, the question of identity was important, Drew, supra, 118 U.S.App.D.C. at 16, 331 F.2d at 90, to the Schilling murder which was perpetrated without a known witness. See Warren, supra, 436 A.2d at 833. As for prejudice to the appellant, the Benoff and Schilling incidents were presented at trial as sufficiently distinct events such that jurors would not likely,...