JOHNSON v. U.S.

• Citation: 683 A.2d 1087
• Decision Date: 17 October 1996
• Docket Number: No. 91-CF-5,91-CF-5
• Parties: William A. JOHNSON, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

683 A.2d 1087

William A. JOHNSON, Appellant, v. UNITED STATES, Appellee.

No. 91-CF-5.

District of Columbia Court of Appeals.

Argued September 27, 1995.

Decided October 17, 1996.

APPEAL FROM THE SUPERIOR COURT, STEPHEN F. EILPERIN AND FRED L. MCINTYRE, JJ.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

M. Elizabeth Kent, appointed by this court, Washington, DC, for appellant.

Thomas J. Tourish, Assistant United States Attorney, with whom Jay B. Stephens, United States Attorney at the time the brief was filed, and John R. Fisher, Daniel S. Friedman and Caroline Marnock Carey, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, Chief Judge, FERREN, TERRY, STEADMAN, SCHWELB, FARRELL, KING, RUIZ, and REID, Associate Judges, and BELSON, Senior Judge.

BELSON, Senior Judge:

The issues presented by this case lead us to reexamine the law of this jurisdiction concerning the admission of evidence of crimes other than the crime with which a defendant is charged. Having done so, we reaffirm the longstanding principle set forth in Drew v. United States¹ that evidence of another crime is inadmissible to prove disposition to commit the crime charged. At the same time, we continue to recognize that the inadmissibility of such evidence of other crimes may be overcome if it is offered on and determined to be relevant to a material issue in the case. We also reaffirm that the Drew rule has application only to evidence of another crime that is independent of the crime charged, and that it does not apply to evidence of acts, including criminal conduct, that directly proves the crime charged. We will follow the policy set forth in Federal Rule of Evidence 403 that evidence, although relevant and otherwise admissible, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, and will apply that policy not only to admission of evidence generally, but also to the decision whether or not to admit evidence of other crimes that qualifies for admission under the exceptions to the Drew rule.

I.

Appellant William A. Johnson was convicted by a jury of premeditated first degree murder while armed (D.C. Code §§ 22-2401, -3202 (1996 Repl.)), conspiracy to distribute and possess with intent to distribute narcotics (D.C. Code § 33-541(a)(1) (1993 Repl. & 1996 Supp.)), possession of a firearm during a crime of violence (D.C. Code § 22-3204(b) (1996 Repl.)), and carrying a pistol without a license (D.C. Code § 22-3204(a) (1996 Repl.)). He appeals his conviction on the grounds that the trial court incorrectly permitted the prosecution to introduce evidence of uncharged crimes, that the prosecution improperly failed to disclose exculpatory material, and that the trial court erred in admitting against him certain statements of a co-conspirator. A majority of a division of this court voted to reverse appellant's conviction on the basis of his other crimes argument without reaching his other points. (Slip op., November 10, 1994). Appellee United States of America petitioned for rehearing or rehearing en banc. The petition for rehearing en banc was granted, and the prior decision and order of the court vacated. We now affirm appellant's convictions.

In this opinion, we concern ourselves primarily with the other crimes evidence issue which split the division. We explain why we are satisfied that the trial court did not abuse its discretion when, having analyzed the issues before it by applying the body of law that has developed concerning "other crimes" or Drew evidence, it ruled before trial that the disputed evidence would be admitted. We hold additionally, however, that the evidence was direct proof of the crime charged and admissible as such without regard to any exception to the policy of presumed prejudice and resulting exclusion described in Drew. We give the reasons for our conclusion that the trial judge did not abuse his discretion in the manner in which he controlled the development and use of the evidence at trial. Finally, we find unpersuasive the Brady² and evidentiary arguments Johnson advances.

II.

The government alleged that appellant Johnson and Bruce Void killed Tyrone Carrringtontheir partner in a cocaine and phencyclidine (PCP) operation. On the night of September 1, 1989, while he sat in his car in the District, Carrington was shot twice in the head, once from the passenger side of his car with a .38 caliber bullet, and once from the driver's side with a .45 caliber bullet. Minutes before Carrington was killed, he was seen near the scene of the murder driving his car with Johnson in the passenger seat and Void closely following behind in Void's sport utility vehicle.

Whoever shot Carrington inferably stole his portable telephone and key chain, the latter of which held keys for both the car and a nearby Maryland apartment. The apartment doubled as the production center of the narcotics ring and a home for three persons, Carrington's son, Carrington's girlfriend, Crystal Brown, and Brown's younger brother. Minutes after Carrington was shot, calls were placed to the apartment from the portable telephones of both Carrington and Void. Less than an hour after the shooting, following an unforced entry into the apartment, drugs and a nine millimeter pistol were stolen from a rifled bedroom closet (the only place in the home that was ransacked), and the two boys who lived there were shot and killed. The boys, with whom Johnson had played on prior occasions, were ages twelve and thirteen. A week after the killings, appellant and Void were stopped by Maryland police in Void's truck, and the stolen nine millimeter pistol was found in Johnson's possession. The boys were killed by bullets fired from the same .45 that was used to shoot Carrington.

Johnson and Void were charged in a single indictment with the premeditated murder of Carrington, conspiracy to distribute and possess narcotics, and a weapons charge. The indictment alleged, as overt acts in furtherance of the conspiracy, that the defendants had, among other things, robbed the Maryland apartment of drugs, guns, and money, and shot the two boys. Johnson's case was severed from Void's. Johnson was tried first in response to his speedy trial demand, and was found guilty of the murder, drug distribution conspiracy, and weapon charges. In a subsequent trial, Void was convicted on all counts, and a division of this court affirmed his conviction. Void v. United States, 631 A.2d 374 (D.C. 1993).

III.

A. The Pretrial "Other Crimes" Motion and Ruling

Prior to trial, Johnson moved to bar the government from eliciting evidence of "other crimes," focusing particularly on evidence of the killing of the two boys.³ The government successfully opposed the motion. At trial, the evidence of the Maryland slayings was admitted.

In moving before trial to exclude the evidence, Johnson urged application of the strictures against "other crimes" evidence laid out in Drew, supra. Johnson asserted that the evidence was inadmissible because the government had not established, by clear and convincing evidence, that Johnson was connected with the other crimes, as required under Drew and its progeny. Alternatively, appellant argued that the danger of prejudice presented by the admission of the evidence outweighed its probative value and that it should be excluded on that ground.

The government sought admission of the evidence of the Maryland killings under two separate theories. First, the government asserted that, assuming that Drew rules were applicable, they were satisfied here because it proposed to use the evidence to prove the identity of the accused, a recognized exception to Drew. This was true, argued the government, because the killers of the children and Carrington were almost certainly the same. Supporting this assertion, the government pointed to the significant chronological and evidentiary links between thetwo crimes, the inference that whoever entered the Maryland apartment knew what they would find (knowledge rather uniquely held by Void and Johnson), and the fact that the boys knew Void and Johnson, thus providing the two with a special reason to kill the boys to prevent identification. The government urged that the second prong of Drew was satisfied because the danger of prejudice was outweighed by the probative value of the evidence. Also, in response to an argument by co-defendant Void, whose case had not yet been severed, the government insisted that the evidence could not be "sanitized" by, for example, telling the jury only that the same gun that killed Carrington had been used in the apartment, rather than telling them that bullets from that gun were removed from the bodies of the two children.

The government's second argument for admission was that the evidence fell outside the special rules of Drew because it was direct proof of the narcotics conspiracy. In this regard, the government relied exclusively upon the argument that the grand jury had listed the Maryland killings as overt acts of the conspiracy, and thus the government had to prove that they occurred. The government did not use as a fallback the argument that the evidence of the Maryland acts was direct proof of Carrington's murder and therefore was admissible even apart from the argument that it proved an overt act of the conspiracy.

The motions court found that the Drew requirements were satisfied. It held that, by the proffered evidence, the prosecution had established clearly and convincingly that Johnson committed the uncharged crimes. Evidence that the same person committed both crimes was "powerful," according to the court. The court also ruled that the evidence was admissible regardless of Drew because it was directly relevant to the...