Drew analysis in District of Columbia

2024Thus, “if relevant evidence could theoretically support additional charges but is not subject to Drew analysis because the other crimes are not independent of the crime charged and the evidence is direct proof of the crime charged, it must surmount only the final hurdle that all evidence of whatever sort must clear, i.e., the evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice it poses.” (William) Johnson, 683 A.2d at 1101 .

2023However, the Drew analysis is not required [under Johnson] where the evidence is ‘not independent of the crime charged and the evidence is direct proof of the crime charged.’” (internal citation and ellipsis omitted) (quoting Johnson v. United States, 683 A.2d 1087, 1101 (D.C. 1996) (en banc))). 11 In Drew, the D.C.

2008See Toliver, 468 A.2d at 961 (holding that “in cases where evidence of incidental, uncharged criminal conduct is inextricably intertwined with evidence of the charged offense, evidence of the uncharged criminal conduct is directly admissible without the necessity of a cautionary Drew instruction [limiting the admissibility of the evidence to a particular purpose]”). 4 .

2008However, “in cases where evidence of incidental, uncharged criminal conduct is inextricably intertwined with evidence of the charged offense, evidence of the uncharged criminal conduct is directly admissible without the necessity of a cautionary Drew instruction.” Toliver v. United States, 468 A.2d 958, 961 (D.C.1983).

2023Circuit reasoned that “the prejudice that might result from the jury’s hearing the evidence of the other crime in a joint trial would be no different from that possibility in separate trials.” Id. 6 _________________ 6 Where there is a Drew exception to other-crimes evidence based on its relevance to a permissible purpose, the court uses four factors to determine admissibility: (1) there must be clear and convincing evidence that the defendant committed the other offense; (2) the evidence of the other offense must be directed to a genuine, material and contested issue in the case; (3) the evid

2023Circuit reasoned that “the prejudice that might result from the jury’s hearing the evidence of the other crime in a joint trial would be no different from that possibility in separate trials.” Id. 6 _________________ 6 Where there is a Drew exception to other-crimes evidence based on its relevance to a permissible purpose, the court uses four factors to determine admissibility: (1) there must be clear and convincing evidence that the defendant committed the other offense; (2) the evidence of the other offense must be directed to a genuine, material and contested issue in the case; (3) the evid

2008As we explained in Wheeler v. United States, Drew analysis does not control “when the circumstantial evidence in and of itself cannot be characterized as establishing criminal behavior.” 470 A.2d 761, 769 (D.C. 1983).

1997The Drew analysis applies also to prior uncharged misconduct and “bad acts," "but not to acts that are not, at least, ‘minimally in the nature of a criminal offense.’ " Bigelow v. United States, 498 A.2d 210, 212 (D.C.1985) (quoting Wheeler, supra, 470 A.2d at 769 ).

1996There we summarized the Drew rule as follows: “Ordinarily, evidence of prior acts which are criminal in nature, whether adjudicated as such or not, and which are wholly independent of the crime charged, is inadmissible unless it comes within one of the exceptions listed in Drew v. United States.” Id. at 282 (emphasis supplied); see (James) Jones, supra, 477 A.2d at 237 .

1996There we summarized the Drew rule as follows: “Ordinarily, evidence of prior acts which are criminal in nature, whether adjudicated as such or not, and which are wholly independent of the crime charged, is inadmissible unless it comes within one of the exceptions listed in Drew v. United States.” Id. at 282 (emphasis supplied); see (James) Jones, supra, 477 A.2d at 237 .

1990If one distinctive similarity is not present among the evidence, “the court can consider the totality of the factual circumstances which amalgamated, lay a sufficient basis for admission under the Drew doctrine.” Gates v. United States, 481 A.2d 120, 123 (D.C.1984); see Bartley v. United States, 530 A.2d 692 (D.C.1987).

1990If one distinctive similarity is not present among the evidence, “the court can consider the totality of the factual circumstances which amalgamated, lay a sufficient basis for admission under the Drew doctrine.” Gates v. United States, 481 A.2d 120, 123 (D.C.1984); see Bartley v. United States, 530 A.2d 692 (D.C.1987).

2020Moreover, “[w]e ‘consider the totality of the factual circumstances’ in determining whether there is ‘a sufficient basis for admission under the Drew doctrine.’” Thomas v. United States, 59 A.3d 1252, 1260 (D.C. 2013) (quoting Easton, 533 A.2d at 907 ).

2020Moreover, “[w]e ‘consider the totality of the factual circumstances’ in determining whether there is ‘a sufficient basis for admission under the Drew doctrine.’” Thomas v. United States, 59 A.3d 1252, 1260 (D.C. 2013) (quoting Easton, 533 A.2d at 907 ).

2005Page v. United States, 438 A.2d 195, 198 (D.C.1981) (citing Willcher v. United States, 408 A.2d 67, 75 (D.C.1979); Light v. United States, 360 A.2d 479 (D.C.1976)) (explaining that “we [have] recognized that the Drew exception applied to unlawful activity that had not been adjudicated a crime”).

2005Page v. United States, 438 A.2d 195, 198 (D.C.1981) (citing Willcher v. United States, 408 A.2d 67, 75 (D.C.1979); Light v. United States, 360 A.2d 479 (D.C.1976)) (explaining that “we [have] recognized that the Drew exception applied to unlawful activity that had not been adjudicated a crime”).

1998Thus, as in Campbell, supra, 450 A.2d at 431 , "other means of proof, especially the fact that the reasonableness of [M.A.’s] fear is better explained by ... [other facts], limits the probative value of ... [the other crimes evidence] for this purpose.” For this reason, even if Drew analysis were not employed, the trial court would have been well advised not to admit evidence of the prior beating, because " ‘whenever’ — and not simply in the Drew context — ‘relevant evidence poses a danger of unfair prejudice,’ the trial court ‘must weigh the apparent probative value of the evidence against th

1998Thus, as in Campbell, supra, 450 A.2d at 431 , "other means of proof, especially the fact that the reasonableness of [M.A.’s] fear is better explained by ... [other facts], limits the probative value of ... [the other crimes evidence] for this purpose.” For this reason, even if Drew analysis were not employed, the trial court would have been well advised not to admit evidence of the prior beating, because " ‘whenever’ — and not simply in the Drew context — ‘relevant evidence poses a danger of unfair prejudice,’ the trial court ‘must weigh the apparent probative value of the evidence against th

2014Although defense counsel proffered that Black himself disagreed with Smith’s characterization of his fight with Richardson, “[t]his court has held that an eyewitness’ testimony of h[er] observations of the prior bad acts meets the required standard of showing by clear and convincing evidence that the defendant was connected with the prior unlawful conduct for purposes of admission of evidence under a Drew exception.” Frye v. United States, 926 A.2d 1085, 1094 (D.C.2005).

2014Although defense counsel proffered that Black himself disagreed with Smith’s characterization of his fight with Richardson, “[t]his court has held that an eyewitness’ testimony of h[er] observations of the prior bad acts meets the required standard of showing by clear and convincing evidence that the defendant was connected with the prior unlawful conduct for purposes of admission of evidence under a Drew exception.” Frye v. United States, 926 A.2d 1085, 1094 (D.C.2005).

1996D.C. 268, 273 n. 23, 432 F.2d 1330 , 1335 n. 23 (1970). [7] See Ford v. United States, 647 A.2d 1181, 1185 (D.C.1994). [1] I would expect that under the majority's approach trial courts would continue to be keenly aware (if not presume) that evidence of uncharged conduct — even if it comes under a Drew exception — can be very prejudicial. [1] FED.R.EVID. 403 provides in full: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste

1996D.C. 268, 273 n. 23, 432 F.2d 1330 , 1335 n. 23 (1970). [7] See Ford v. United States, 647 A.2d 1181, 1185 (D.C.1994). [1] I would expect that under the majority's approach trial courts would continue to be keenly aware (if not presume) that evidence of uncharged conduct — even if it comes under a Drew exception — can be very prejudicial. [1] FED.R.EVID. 403 provides in full: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste

1993See Johnson v. United States, 596 A.2d 980, 986-87 (D.C.1991) (evidence that defendant possessed a gun days before the murder in question was not Drew other crimes evidence, but constituted evidence of the crime charged), cert. denied, Bullock v. United States, — U.S. -, 112 S.Ct. 1987 , 118 L.Ed.2d 585 (1992); Ali, supra, 581 A.2d at 377 (photograph of defendant with sawed-off shotgun taken one month before charged offense in which similar weapon was used “constituted evidence of the crime charged” and therefore was not subject to Drew analysis); Lee v. United States, supra, 471 A.2d at 686 (

1993See Johnson v. United States, 596 A.2d 980, 986-87 (D.C.1991) (evidence that defendant possessed a gun days before the murder in question was not Drew other crimes evidence, but constituted evidence of the crime charged), cert. denied, Bullock v. United States, — U.S. -, 112 S.Ct. 1987 , 118 L.Ed.2d 585 (1992); Ali, supra, 581 A.2d at 377 (photograph of defendant with sawed-off shotgun taken one month before charged offense in which similar weapon was used “constituted evidence of the crime charged” and therefore was not subject to Drew analysis); Lee v. United States, supra, 471 A.2d at 686 (

1981However, as originally given, the instruction covered not only a common scheme or plan embracing several events but also a standard mode of operation for separate crimes over a longer period of time — a “modus operandi” or “signature.” Evidence of a “modus operandi” is admissible under a different Drew exception: it is probative of “identity.” See Calaway v. United States, D.C.App., 408 A.2d 1220, 1226 (1979) (evidence of prior assault admissible to show modus operandi where government alleges that, in both prior assault and offense charged, defendant approached a young woman on pretense of lo

1981However, as originally given, the instruction covered not only a common scheme or plan embracing several events but also a standard mode of operation for separate crimes over a longer period of time — a “modus operandi” or “signature.” Evidence of a “modus operandi” is admissible under a different Drew exception: it is probative of “identity.” See Calaway v. United States, D.C.App., 408 A.2d 1220, 1226 (1979) (evidence of prior assault admissible to show modus operandi where government alleges that, in both prior assault and offense charged, defendant approached a young woman on pretense of lo

2014We next must determine whether evidence of Richardson’s earlier assault on Black was probative of Richardson’s motive to attack Brown in a way that “did not depend ‘wholly or primarily on the jury inferring’ that appellant ‘was predisposed or had a propensity to commit the charged crimes.’ ” Legette v. United States, 69 A.3d 373, 384 (D.C.2013) (quoting Harrison v. United States, 30 A.3d 169, 178 (D.C.2011)).

2014We next must determine whether evidence of Richardson’s earlier assault on Black was probative of Richardson’s motive to attack Brown in a way that “did not depend ‘wholly or primarily on the jury inferring’ that appellant ‘was predisposed or had a propensity to commit the charged crimes.’ ” Legette v. United States, 69 A.3d 373, 384 (D.C.2013) (quoting Harrison v. United States, 30 A.3d 169, 178 (D.C.2011)).

2014We next must determine whether evidence of Richardson’s earlier assault on Black was probative of Richardson’s motive to attack Brown in a way that “did not depend ‘wholly or primarily on the jury inferring’ that appellant ‘was predisposed or had a propensity to commit the charged crimes.’ ” Legette v. United States, 69 A.3d 373, 384 (D.C.2013) (quoting Harrison v. United States, 30 A.3d 169, 178 (D.C.2011)).

2014We next must determine whether evidence of Richardson’s earlier assault on Black was probative of Richardson’s motive to attack Brown in a way that “did not depend ‘wholly or primarily on the jury inferring’ that appellant ‘was predisposed or had a propensity to commit the charged crimes.’ ” Legette v. United States, 69 A.3d 373, 384 (D.C.2013) (quoting Harrison v. United States, 30 A.3d 169, 178 (D.C.2011)).

2009Here, the threats were admissible because they were “direct and substantial proof of the charged crime.” See id. at 1097 (citing Smith v. United States, 312 A.2d 781, 785 (D.C.1973)).

1993See Johnson v. United States, 596 A.2d 980, 986-87 (D.C.1991) (evidence that defendant possessed a gun days before the murder in question was not Drew other crimes evidence, but constituted evidence of the crime charged), cert. denied, Bullock v. United States, — U.S. -, 112 S.Ct. 1987 , 118 L.Ed.2d 585 (1992); Ali, supra, 581 A.2d at 377 (photograph of defendant with sawed-off shotgun taken one month before charged offense in which similar weapon was used “constituted evidence of the crime charged” and therefore was not subject to Drew analysis); Lee v. United States, supra, 471 A.2d at 686 (

2005Page v. United States, 438 A.2d 195, 198 (D.C.1981) (citing Willcher v. United States, 408 A.2d 67, 75 (D.C.1979); Light v. United States, 360 A.2d 479 (D.C.1976)) (explaining that “we [have] recognized that the Drew exception applied to unlawful activity that had not been adjudicated a crime”).

2005Page v. United States, 438 A.2d 195, 198 (D.C.1981) (citing Willcher v. United States, 408 A.2d 67, 75 (D.C.1979); Light v. United States, 360 A.2d 479 (D.C.1976)) (explaining that “we [have] recognized that the Drew exception applied to unlawful activity that had not been adjudicated a crime”).

2004Following prior case law, including Drew itself, we reiterated that Drew does not apply when the challenged evidence “(1) is direct and substantial proof of the charged crime, (2) is closely intertwined with the evidence of the charged crime, or (3) is necessary to place the charged crime in an understandable context.” Johnson, 683 A.2d at 1098 ; see also Williams v. United States, 549 A.2d 328, 332 (D.C.1988) (listing five principal exceptions to the Drew rule recognized in Drew itself, and noting that there are additional exceptions).

2004Following prior case law, including Drew itself, we reiterated that Drew does not apply when the challenged evidence “(1) is direct and substantial proof of the charged crime, (2) is closely intertwined with the evidence of the charged crime, or (3) is necessary to place the charged crime in an understandable context.” Johnson, 683 A.2d at 1098 ; see also Williams v. United States, 549 A.2d 328, 332 (D.C.1988) (listing five principal exceptions to the Drew rule recognized in Drew itself, and noting that there are additional exceptions).

1997The Drew analysis applies also to prior uncharged misconduct and “bad acts," "but not to acts that are not, at least, ‘minimally in the nature of a criminal offense.’ " Bigelow v. United States, 498 A.2d 210, 212 (D.C.1985) (quoting Wheeler, supra, 470 A.2d at 769 ).

1997The Drew analysis applies also to prior uncharged misconduct and “bad acts," "but not to acts that are not, at least, ‘minimally in the nature of a criminal offense.’ " Bigelow v. United States, 498 A.2d 210, 212 (D.C.1985) (quoting Wheeler, supra, 470 A.2d at 769 ).

1993We also reject Phillip Scott’s claim that this cross-examination was an improper reference to other crimes evidence, in viola *927 tion of the Drew doctrine, because the mere possession of a gun is not a “bad act.” See Jones v. United States, 477 A.2d 231, 237-238 (D.C.1984) (“Possession of a gun, without more, is not wrongful conduct ... and the Drew analysis is not used where circumstantial evidence ‘could not be characterized as establishing criminal behavior’ ”) (citations omitted); Fornah v. United States, 460 A.2d 556, 562 (D.C.1983); see also King v. United States, 618 A.2d 727, 730 (D.

1993We also reject Phillip Scott’s claim that this cross-examination was an improper reference to other crimes evidence, in viola *927 tion of the Drew doctrine, because the mere possession of a gun is not a “bad act.” See Jones v. United States, 477 A.2d 231, 237-238 (D.C.1984) (“Possession of a gun, without more, is not wrongful conduct ... and the Drew analysis is not used where circumstantial evidence ‘could not be characterized as establishing criminal behavior’ ”) (citations omitted); Fornah v. United States, 460 A.2d 556, 562 (D.C.1983); see also King v. United States, 618 A.2d 727, 730 (D.

1993See Johnson v. United States, 596 A.2d 980, 986-87 (D.C.1991) (evidence that defendant possessed a gun days before the murder in question was not Drew other crimes evidence, but constituted evidence of the crime charged), cert. denied, Bullock v. United States, — U.S. -, 112 S.Ct. 1987 , 118 L.Ed.2d 585 (1992); Ali, supra, 581 A.2d at 377 (photograph of defendant with sawed-off shotgun taken one month before charged offense in which similar weapon was used “constituted evidence of the crime charged” and therefore was not subject to Drew analysis); Lee v. United States, supra, 471 A.2d at 686 (

1992Evidence of other crimes may also be admissible when the other crimes evidence is "inextricably entwined with the evidence necessary to [prove] ... the crime charged." Lee v. United States, 471 A.2d 683, 686 (D.C.1984); Toliver, supra, 468 A.2d at 961 ("incidental, uncharged criminal conduct inextricably intertwined with evidence of the charged offense" admissible without cautionary Drew instruction).

2004However, in Johnson v. United States, 683 A.2d 1087, 1090 (D.C.1996) (en banc), cert. denied, 520 U.S. 1148 , 117 S.Ct. 1323 , 137 L.Ed.2d 484 (1997), this court held that, notwithstanding Drew , “the inadmissibility of ... evidence of other crimes may be overcome if it is offered on and determined to be relevant to a material issue in the case.” The Johnson court also “reaffirm[ed] that the Drew rule ... does not apply to evidence of acts, including criminal conduct, that directly prove[] the crime charged.” Id.; see Toliver v. United States, 468 A.2d 958, 961 (D.C.1983).

2004However, in Johnson v. United States, 683 A.2d 1087, 1090 (D.C.1996) (en banc), cert. denied, 520 U.S. 1148 , 117 S.Ct. 1323 , 137 L.Ed.2d 484 (1997), this court held that, notwithstanding Drew , “the inadmissibility of ... evidence of other crimes may be overcome if it is offered on and determined to be relevant to a material issue in the case.” The Johnson court also “reaffirm[ed] that the Drew rule ... does not apply to evidence of acts, including criminal conduct, that directly prove[] the crime charged.” Id.; see Toliver v. United States, 468 A.2d 958, 961 (D.C.1983).

2004However, in Johnson v. United States, 683 A.2d 1087, 1090 (D.C.1996) (en banc), cert. denied, 520 U.S. 1148 , 117 S.Ct. 1323 , 137 L.Ed.2d 484 (1997), this court held that, notwithstanding Drew , “the inadmissibility of ... evidence of other crimes may be overcome if it is offered on and determined to be relevant to a material issue in the case.” The Johnson court also “reaffirm[ed] that the Drew rule ... does not apply to evidence of acts, including criminal conduct, that directly prove[] the crime charged.” Id.; see Toliver v. United States, 468 A.2d 958, 961 (D.C.1983).

2004However, in Johnson v. United States, 683 A.2d 1087, 1090 (D.C.1996) (en banc), cert. denied, 520 U.S. 1148 , 117 S.Ct. 1323 , 137 L.Ed.2d 484 (1997), this court held that, notwithstanding Drew , “the inadmissibility of ... evidence of other crimes may be overcome if it is offered on and determined to be relevant to a material issue in the case.” The Johnson court also “reaffirm[ed] that the Drew rule ... does not apply to evidence of acts, including criminal conduct, that directly prove[] the crime charged.” Id.; see Toliver v. United States, 468 A.2d 958, 961 (D.C.1983).

1988See Drew v. United States, 118 U.S.App.D.C. 11 , 331 F.2d 85 (1964); see also Thompson v. United States, 546 A.2d 414 (D.C.1988); Bartley v. United States, 530 A.2d 692, 701 (D.C.1987) (Mack, J., dissenting). *102 In the typical Drew analysis, the instant case does not present a situation in which the evidence of one crime would have been admissible in a separate trial of the other to prove identity.

1988See Drew v. United States, 118 U.S.App.D.C. 11 , 331 F.2d 85 (1964); see also Thompson v. United States, 546 A.2d 414 (D.C.1988); Bartley v. United States, 530 A.2d 692, 701 (D.C.1987) (Mack, J., dissenting). *102 In the typical Drew analysis, the instant case does not present a situation in which the evidence of one crime would have been admissible in a separate trial of the other to prove identity.

1981Appellant next argues (Brief at 7), citing Bridges v. United States, D.C.App., 381 A.2d 1073 (1977), that her activity on the two occasions about which the officer testified was not so similar to the crime charged in the instant case that it was admissible under the Drew exception.

1981Appellant next argues (Brief at 7), citing Bridges v. United States, D.C.App., 381 A.2d 1073 (1977), that her activity on the two occasions about which the officer testified was not so similar to the crime charged in the instant case that it was admissible under the Drew exception.

2023Whether evidence of different offenses is mutually admissible can be established based on a “Drew exception” for other-crimes evidence, or based on a determination that evidence of the two offenses constitute “Johnson evidence.” See Sweet v. United States, 756 A.2d 366, 376 (D.C. 2000) (“Mutual admissibility of evidence in separate trials is determined generally by applying a Drew analysis.

2023Whether evidence of different offenses is mutually admissible can be established based on a “Drew exception” for other-crimes evidence, or based on a determination that evidence of the two offenses constitute “Johnson evidence.” See Sweet v. United States, 756 A.2d 366, 376 (D.C. 2000) (“Mutual admissibility of evidence in separate trials is determined generally by applying a Drew analysis.

1998See Sherer v. United States, 470 A.2d 732 , 738 n. 5 (D.C.1983) (“These impeachment rules [permitting impeachment of witnesses with specific instances of the witnesses’ ‘bad conduct’] should not be confused with the analytically distinct doctrine that restricts the introduction, as substantive evidence, of an accused’s prior crimes or bad acts.”) Our law recognizes a narrow exception, where other crimes evidence may be admissible without implicating Drew concerns, where such evidence is used “strictly for impeachment purposes.” See Samuels, supra, 605 A.2d at 597 (stating that Drew “ ‘restrict

1998See Sherer v. United States, 470 A.2d 732 , 738 n. 5 (D.C.1983) (“These impeachment rules [permitting impeachment of witnesses with specific instances of the witnesses’ ‘bad conduct’] should not be confused with the analytically distinct doctrine that restricts the introduction, as substantive evidence, of an accused’s prior crimes or bad acts.”) Our law recognizes a narrow exception, where other crimes evidence may be admissible without implicating Drew concerns, where such evidence is used “strictly for impeachment purposes.” See Samuels, supra, 605 A.2d at 597 (stating that Drew “ ‘restrict

1996See Hill v. United States, 600 A.2d 58 (D.C.1991). [21] It was the prosecutor who first suggested the need for a limiting instruction regarding the evidence admitted under a Drew exception.

1996See Hill v. United States, 600 A.2d 58 (D.C.1991). [21] It was the prosecutor who first suggested the need for a limiting instruction regarding the evidence admitted under a Drew exception.