finding error harmful where “highly prejudicial uncharged misconduct evidence was erroneously admitted,” even where the trial court had provided a limiting instruction about the use of the evidence
How later courts described this case
- finding error harmful where “highly prejudicial uncharged misconduct evidence was erroneously admitted,” even where the trial court had provided a limiting instruction about the use of the evidence
- in a crime such as conspiracy, proof of a pattern or plan of criminal activity provides direct proof of one of the elements of the crime and thus invocation of the "common scheme or plan" exception to the other crimes evidence doctrine is unnecessary
- a party “may not attempt to manufacture evidence by creating an impression in the minds of the jurors through questions that imply the existence of facts”
Written by the judges who cited it.
The opinion
PRYOR, Chief Judge,
concurring:
Appellant advances three primary assertions of error: (a) that the prosecutor’s questions and argument regarding purported conversations between appellant and his witnesses were improper; (b) that cross-examination of appellant’s wife about her knowledge of her spouse’s alleged adulterous behavior was inflammatory; and lastly (c) that evidence offered by the prosecution to show sexual molestation of complainant’s younger sister should not have been admitted.
Although I am not persuaded that appellant’s first two contentions warrant reversal, I agree that the government’s use of “other crimes” evidence was error which should not be deemed harmless.
During the course of trial, the prosecution elicited evidence bearing on appellant's behavior towards the complainant’s younger sister. In doing so, it relied upon one of the recognized exceptions — common scheme or plan — enumerated in Drew v. United States, 118 U.S.App.D.C. 11 , 331 F.2d 85 (1964). On appeal, however, the government seems to shift its argument to the premise that the evidence was admissible because of appellant’s disposition to commit an unusual sex offense. See Dyson v. United States, 97 A.2d 135 (D.C.1953). Thus far, we have been careful to restrict this concept of admissibility to “other incidents” involving the same wrongdoer and same complaining witness. Moreover, in this instance, this theory of admissibility was never presented to the trial judge and thus the jury was never instructed on it. Accordingly, I cannot view the error as harmless.