Thompson v. United States, 87-424.

• Decision Date: 11 August 1988
• Docket Number: No. 87-424.,87-424.
• Citation: 546 A.2d 414
• Parties: Tony THOMPSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

546 A.2d 414

Tony THOMPSON, Appellant, v. UNITED STATES, Appellee.

No. 87-424.

District of Columbia Court of Appeals.

Argued June 23, 1988.

Decided August 11, 1988.

Leslie B. Holt, Silver Spring, Md., appointed by this court, for appellant.

Kevin A. Forder, Asst. U.S. Atty., with whom Joseph diGenova, U.S. Atty., at the time the brief was filed, and Michael W. Farrell, Helen M. Bollwerk, and Kenneth D. Bynum, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before MACK, FERREN and SCHWELB, Associate Judges.

SCHWELB, Associate Judge:

Almost half a century ago, long before Glasnost and Perestroika, a famous statesman with a gift for words described the Soviet Union as "a riddle wrapped in a mystery inside an enigma."¹ The future prime minister's description of a then inscrutable nation would have been, and would remain today, an apt appraisal of the state of the law pertaining to the admission of proof of "other crimes." When the writer of this opinion first studied evidence more than thirty years ago, he was warned by the authors of his casebook that

no part of the law of evidence is more consistently and violently litigated than that having to do with the admissibility of proof of other criminal acts.

MORGAN, MAGUIRE & WEINSTEIN, EVIDENCE: CASES and MATERIALS, 380 (4th ed. 1957). A generation has elapsed since then, but those who wrote the current edition of the leading treatise on evidence continue to lament that

it is hopeless to attempt to reconcile the precedents under the various heads, for too much depends on the tendency of the court in dealing with a flexible principle.

WIGMORE (SECOND) ON EVIDENCE § 307 at 246 (1979). The question when evidence of a particular criminal act may be admitted is so perplexing that the cases sometimes seem as numerous as the sands of the sea and often cannot be reconciled. 2 J. WEINSTEIN, EVIDENCE, § 404(08), at 404-53 (1986). Indeed, Judge Tamm's observations about an equally intractable issue in his concurring opinion in United States v. Holland, 144 U.S. App.D.C. 225, 227, 445 F.2d 701 703 (1971), ring particularly true with respect to other crimes:

the more cases one reads on constructive possession, the deeper is he plunged into a thicket of subjectivity . . . It is illogical to believe that from the chaotic patchwork which flows ex cathedra there is created a stable and definable body of law.

It was in this somewhat bewildering context that the trial judge in this case permitted the prosecutor, who by his own account was playing "hardball,"² to present evidence of another crime by Tony Thompson, the appellant, as part of his case in chief. In the case now on appeal, twenty-seven tin foils of marijuana laced with P.C.P. were found under the passenger seat, occupied by Thompson, of an automobile operated by his codefendant Bartholomew Copeland. Thompson's defense to the charge of possessing the two unlawful substances with intent to distribute them (PWID) was that the tin foils were not his and that he did not know that they were in the vehicle. Although intent to distribute was not and never became a contested issue, the trial judge admitted, as bearing on the issue of intent, evidence that Thompson had sold P.C.P.-laced marijuana to an undercover police officer on another occasion approximately five months before the incident for which he was on trial. Recognizing that there may be courts that would approve the reception of the evidence in question, we nevertheless conclude that its admission is impermissible in the District of Columbia. Accordingly, we reverse and remand for a new trial.

I

The facts of this all but paradigmatic case can be stated briefly. Copeland was stopped at about 2:10 a.m. on April 23, 1986 when an officer observed his vehicle weaving from lane to lane in southeast Washington. He was eventually arrested for driving under the influence of alcohol, and in searching him incident to his arrest, officers found eight tin foil packets of P.C.P.-laced marijuana in his jacket pocket. Even after Copeland's removal from the car, the "strong chemical odor" of P.C.P. continued to emanate from the vehicle. Officers directed Thompson, who was occupying the passenger seat, to step out of the car. Directly under his seat, they found a plastic bag containing twenty-seven more tin foils of P.C.P.-laced marijuana.

Copeland and Thompson were both charged with possession of P.C.P. and marijuana with intent to distribute each substance. D.C. Code § 33-541(a) (1987 Supp.). By pretrial motion, the United States sought leave to introduce as "Drew evidence"³ Thompson's sale of P.C.P. and marijuana on November 13, 1985. That incident had occurred within three or four blocks of the scene of the instant arrest, but also within a block and a half of Thompson's home.

The trial judge held a hearing on the government's motion, and the prosecutor argued that evidence of the November 1985 sale should be admitted under several different Drew exceptions. Defense counsel objected, relying primarily on Graves v. United States, 515 A.2d 1136 (D.C. 1986). During the course of the argument, the judge observed that the impact of the contested evidence would be "devastating," but wondered whether the government should be compelled to present a case "that's so sanitized it doesn't bear any [relation] to reality." Attempting to discern whether intent to distribute was in issue, he inquired of the defense attorney. After counsel had apparently misunderstood the judge's question when it was initially asked, (and had uncomprehendingly answered in the affirmative), the following colloquy occurred:

THE COURT: The issue of intent is contested?

DEFENSE COUNSEL: So far there hasn't been any evidence introduced, Your Honor, by either side.

After the conclusion of argument, the trial judge granted the government's motion, ruling that Graves was not conclusive and that

evidence of a prior occasion distributing these substances may be admissible to prove the issue of intent.

The judge also recognized the difficulty of the question:

if you desire to preserve an appellate issue, right now, the way things are going, it looks like you're going to have one of the first magnitude.

At trial, the prosecutor called police officers who gave evidence with respect to the incidents of November 1985⁴ and April 1986 which have been described above. The government's narcotics expert, Detective Lawrence Coates, then testified, among other things, that the packaging of the contraband indicated that it had been broken down into small amounts for ready sale, and was not being retained for personal use. He explained that an individual who wanted to obtain the amount of P.C.P.laced marijuana contained in the packages could purchase it in large quantities — i.e. in "half lids" or "lids" — at a third of its price as packaged.

At the conclusion of Detective Coates' testimony, the prosecutor rested, and each defendant made a motion for judgment of acquittal. Copeland's counsel submitted on the record, but during argument of Thompson's motion, the judge expressed some reservation as to whether there was sufficient evidence, beyond Thompson's mere presence, from which the jury could fairly conclude that Thompson constructively possessed the drugs. Apparently as a result of these problems, the government entered into a plea agreement with Copeland in which felony charges were dismissed in return for Copeland's guilty plea to one count of simple possession of P.C.P. and one count of simple possession of marijuana and his promise to testify truthfully. Over Thompson's strenuous objection, the prosecutor was then permitted to reopen his case, and Copeland testified, among other things, that Thompson had brought the bag with twenty-seven tin foils into the car and had offered to sell Copeland some of them. He further related that Thompson attempted to hide the drugs under the seat when the police stopped the car. Following Copeland's testimony, Thompson renewed his motion for judgment of acquittal, but the trial judge correctly denied it.

Maurice Smart, a friend of Copeland and Thompson who testified for the defense, related that he had spent some of the evening with the two other men, that he had seen Copeland with eight packets of P.C.P.-laced marijuana, but that he had not seen Thompson with any drugs at all. Thompson testified in his own behalf and denied possessing the twenty-seven tin foils, or placing them under the passenger seat, or offering them to Copeland. He claimed that he did not see any drugs, even those in Copeland's possession, until the police searched the car. On cross examination, Thompson was impeached with separate convictions for possession of P.C.P. and possession of marijuana, one of them apparently stemming from the incident that formed the basis for the other crimes evidence in this case. During closing argument,⁵ Thompson's counsel attacked Copeland's credibility and focused entirely on the issue whether the government had proved that Thompson possessed the twenty-seven tin foils. With respect to the issue of intent to distribute, counsel conceded that the jury could, but need not, conclude that this had been established by the police expert's testimony and the November 1985 sale, but made no other mention of the issue.⁶ The jury found Thompson guilty of possessing both P.C.P. and marijuana with intent to distribute, and this appeal followed.

II

"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." Drew v. United States, supra, 118 U.S. App.D.C. at 15, 331 F.2d at 89. (Emphasis in original.) Although the fact that a person committed a crime on another occasion logically tends to show a disposition to commit a similar crime today, and thus perhaps to make it more likely that he committed the offense for...