Landrum v. United States, 87-970.

• Decision Date: 20 June 1989
• Docket Number: No. 87-970.,87-970.
• Citation: 559 A.2d 1323
• Court: D.C. Court of Appeals
• Parties: Robert L. LANDRUM, Appellant, v. UNITED STATES, Appellee.

559 A.2d 1323

Robert L. LANDRUM, Appellant, v. UNITED STATES, Appellee.

No. 87-970.

District of Columbia Court of Appeals.

Argued November 10, 1988.

Decided June 20, 1989.

Michael J. Dowd, Jr., for appellant.

Kevin A. Forder, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before ROGERS, Chief Judge, and MACK and TERRY, Associate Judges.

MACK, Associate Judge:

Appellant, Robert L. Landrum, was convicted of armed robbery, D.C.Code §§ 22-2901, 22-3202 (1981), and assault with intent to rob while armed, D.C.Code §§ 22-501, 22-3202 (1981). Landrum contends that his convictions should be overturned because evidence of his participation in a previous robbery was improperly admitted.¹ We agree and reverse.

I.

A.

The charges brought against Landrum arose out of the robbery of a Burger King restaurant located at 3525 Pennsylvania Avenue, S.E. (hereinafter, the D.C. Burger King). Appellant was alleged to have aided and abetted the commission of this robbery by driving the getaway vehicle.

Douglas Naples was among those who testified for the government.² He stated that on Sunday morning, March 22, 1987, he had been traveling in a van with the appellant, who was driving the van, and another individual Naples identified as "Gratten," who was in the passenger seat; Naples himself was in the back of the van. At approximately 8 a.m., they pulled into a gas station across from the D.C. Burger King. According to Naples, Landrum said to Gratten that "he liked it, let's do it." They then drove around for a while longer, before arriving back at the Burger King. Once there, the others asked Naples if he wanted anything to eat. Naples testified that when he responded that he did and began to get out of the van, Landrum got "uptight" and told him that "Gratten would get it." Naples then saw Gratten enter the Burger King and, three or four minutes later, come running back. According to Naples, Gratten entered the van on the passenger side, then dove into the back; Naples was told to get into the passenger seat. Naples observed Gratten pull money from his jacket pocket and then hand it to Landrum; he also noticed a gun in Gratten's pocket. Approximately ten minutes later, Naples stated, a police car stopped the van, and the appellant said "We're busted."

Two employees of the D.C. Burger King also testified for the government. They recounted that on Sunday, March 22, 1987, a man entered the restaurant through a side door, pointed a gun, and told them to open the cash register. The gunman then took approximately $225, stuffing the money into his jacket pocket, and ran out of the restaurant. One of the employees saw the robber enter a van, which drove off.³

The remaining witnesses who testified about the D.C. robbery were three police officers. Two of these officers related that, on March 22, 1987, they stopped a green van in response to a radio call concerning a reported robbery. They testified that there were three individuals in the van when they pulled it over, and both officers identified appellant in court as the driver of that van. Approximately $204 was recovered — $40 from the floor on the driver's side, $40 from the driver's jacket pocket, and $124 from the driver's sock. The officers also recovered a gun from the back of the van, where another man, identified as Gratten Craft, had been sitting on top of it. A third officer later retrieved a notebook from the sun visor above the driver's seat. Eight to ten witnesses were brought to the van. The witnesses identified Craft as the gunman in the Burger King robbery,⁴ but none were able to identify appellant.

Appellant presented no evidence at trial.

B.

By pretrial motion, the government also sought to introduce in its case-in-chief evidence of appellant's participation in the robbery of a Burger King in Prince George's County, Maryland on Saturday, March 21, 1987, the day before the robbery of the D.C. Burger King. Over appellant's objection, the trial court ruled this evidence admissible.

In presenting evidence of this previous robbery, the government called four employees of the Maryland Burger King as its first four witnesses at trial. The employees testified that on March 21, 1987, a man entered the restaurant, approached the counter, pulled a gun, and demanded money. The robber was given approximately $400 from the cash registers. Two of the employees then saw the gunman leave the restaurant and enter a van. In contrast to those employees of the D.C. Burger King who testified, however, one of the Maryland employees was able to identify appellant in court as the driver of that van. Additionally, a handwriting expert testified that an entry in the notebook which was recovered from the van following the D.C. robbery was written in Landrum's handwriting. That entry listed the location of the Maryland Burger King, the date March 21, 1987, and the amount "483" — references, the government argued, to the robbery the day before.

The court allowed in evidence of the Maryland robbery to demonstrate that Landrum possessed the requisite intent for aiding and abetting a robbery.⁵ Specifically, the evidence was admitted for the purpose of showing that Landrum's presence at the scene of the robbery was not likely to have been innocent.⁶

II.

A.

In this jurisdiction, evidence that the accused has committed crimes other than the one with which he is charged is presumptively inadmissible. Drew v. United States, 118 U.S. App.D.C. 11, 15-16, 331 F.2d 85, 89-90 (1964). This is so because of the likelihood that jurors will impermissibly infer that the defendant has a propensity to engage in criminal behavior and so presume guilt. Campbell v. United States, 450 A.2d 428, 430 (D.C.1982); Drew, supra, 118 U.S. App. D.C. at 15, 331 F.2d at 89. Thus we have stated that only where the evidence of the other criminal activity is relevant to prove motive, intent, absence of mistake or accident, a common scheme or plan, or the identity of the perpetrator may such evidence be admitted. Drew, supra, 118 U.S. App.D.C. at 16, 331 F.2d at 90. More fully, in order to introduce other crimes evidence, the proponent must demonstrate that 1) the evidence is directed to a contested and material issue in the case; and 2) the evidence is logically relevant to prove this issue independent of its power to demonstrate propensity.⁷ Ali v. United States, 520 A.2d 306, 310 & n. 4 (D.C.1987); Graves v. United States, 515 A.2d 1136, 1140 (D.C.1986); Campbell, supra, 450 A.2d at 430; Willcher v. United States, 408 A.2d 67, 75 (D.C.1979). Finally, even where the evidence proffered is shown to be logically relevant to a disputed issue, the trial court must still make a separate determination that the probative value of the Drew evidence outweighs its prejudicial effect upon the defendant before admitting the evidence. Thompson v. United States, 546 A.2d 414, 420 (D.C.1988); Graves, supra, 515 A.2d at 1139.

Because intent is an element of virtually every crime, if evidence of other criminal activity were routinely allowed in simply to prove the intent element of a crime, the intent "exception" would soon swallow the rule. Thompson, supra, 546 A.2d at 421; Graves, supra, 515 A.2d at 1140; Willcher, supra, 408 A.2d at 76. Thus, we have stressed that intent must be a genuinely contested matter in the case and not merely a formal issue. Thompson, supra, 546 A.2d at 422-23. Moreover, because "[w]hether an issue has been raised for purposes of receiving other crimes evidence depends upon both the elements of the offense charged and the defense presented," Willcher, supra, 408 A.2d at 75, and "because the trial court will usually not be in a position to decide whether the probative value of that evidence outweighs the prejudice to that defendant until the court has heard not only the rest of the government's case but also the defendant's response," Graves, supra, 515 A.2d at 1141, we have held, and reiterate today, that, absent exceptional circumstances, the government should not be permitted to introduce other crimes evidence in its case-in-chief to prove intent. Thompson, supra, 546 A.2d at 423-24; see also Graves, supra, 515 A.2d at 1142-43 (holding prior acts of inviting for prostitution inadmissible in government's case-in-chief); Willcher, supra, 408 A.2d at 76 (holding evidence of other crimes admissible where government properly waited until cross-examination to introduce it).

This case provides an example of the difficulties which may arise when the determination whether to admit evidence of prior criminal activity is made before all the relevant information is before the court. In this instance, the government asserted in its written "Motion to Admit Drew Evidence" and again at an oral hearing immediately prior to trial, that it anticipated that Landrum's defense would be one of innocent presence and that it wished to offer the evidence of appellant's participation in the Maryland robbery in order to counter such a claim. Defense counsel, however, neither confirmed nor denied that this would in fact be Landrum's defense.⁸ Nonetheless, the court ruled the evidence admissible — in effect, allowing the government to "rebut" a defense which had not yet, and may never have, been raised.

Subsequently, after the jury had been empanelled but prior to the start of trial, the trial judge realized that the testimony of Gratten Craft, appellant's former codefendant and a potential defense witness, might raise certain Fifth Amendment problems. In addressing the court's concerns, defense counsel proffered that Craft would testify, inter alia, that while driving with Landrum in the van, he had decided on his own and on the spur of the moment to rob the D.C. Burger King and that he at no time informed Landrum of this illicit intention. This was the first suggestion by the defense that Landrum might present an innocent...