# Johnson v. United States

> District of Columbia Court of Appeals · October 17, 1996 · 683 A.2d 1087

URL: https://www.frixlaw.com/law-library/cases/9694297

## Case

- **Full name:** William A. JOHNSON, Appellant, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** October 17, 1996
- **Citations:** 683 A.2d 1087; 1996 D.C. App. LEXIS 217; 1996 WL 593750
- **Precedential status:** Published
- **Opinion:** Concurrence by King
- **Judges:** Wagner, Ferren, Terry, Steadman, Schwelb, Farrell, King, Ruiz, Reid, Belson
- **Cited by:** 184 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9694297

## How later opinions describe it (automated extraction)

- holding that evidence of two murders in Maryland proximate in time to the murder charged in the indictment, along with probative evidence linking the bullets from the Maryland murders to the bullets from the charged murder, was admitted without error in order to prove the defe…
- stating “evidence of prior bad acts that are criminal in nature and independent of the crime charged” are inadmissible when offered to prove that the defendant is predisposed to commit a crime
- noting the tenuous origin of the clear and convincing standard, "having evolved from dictum in a twenty-six-year-old case decided by the United States Court of Appeals for District of Columbia, a court that no longer applies that standard itself because it is bound by Huddleston"
- recognizing that the evaluation of evidence for relevance “is quintessentially a discretionary function of the trial court, and we owe a great deal of deference to its decision”

## Opinion text

KING, Associate Judge,
with whom TERRY, Associate Judge, joins, concurring:
I join the opinion of the court but write separately to express the view that because we are today adopting the balancing test of the Federal Rules of Evidence, Fed.R.Evid. 403, for so-called “other crimes” evidence, we should also adopt, in its entirety, Fed.R.Evid. 404(b), the underlying rule governing the *1106 admissibility of that evidence. See Drew v. United States, 118 U.S.App. D.C. 11, 331 F.2d 85 (1964). Doing so would be consistent with our past practice when we have adopted specific provisions of the Federal Rules of Evidence. 1
Rule 404(b) provides:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
As the en banc court today acknowledges, the portion of Rule 404(b) appearing before the word “provided” is “consistent with District of Columbia law.” Ante at 1100, note 17. 2 Formal adoption of the remainder of Fed.R.Evid. 404(b), however, would result in two major changes in our practice. First, we would no longer require that the prosecution preliminarily show, by clear and convincing evidence, that the defendant committed the other crimes, 3 because the Supreme Court has unanimously rejected the need for such a showing, having held that, subject to a probative/prejudicial balancing, the other acts should be admitted “if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act.” Ante at 1100, note 18; see Huddleston v. United States, 485 U.S. 681, 685 , 108 S.Ct. 1496, 1499 , 99 L.Ed.2d 771 (1988). Second, we would also be adopting the requirement of Rule 404(b), set forth above after the word “provided,” that the prosecutor give advance notice of its intent to use other crimes evidence when requested to do so by the accused. See ante at 1100 note 17. I submit, for the reasons stated below, that these considerations should not prevent us from adopting Fed.R.Evid. 404(b) together with authoritative judicial interpretations of its meaning. 4
*1107 As noted above, the admissibility portion of Rule 404(b) does nothing more than state District of Columbia law. 5 But Rule 404(b) does not require a clear and convincing showing as we do. In my view, the case in favor of the clear and convincing evidence requirement has never been made. For example, its origins are suspect, as demonstrated by Judge Kern in the opinion for the court in Daniels v. United States, 613 A.2d 342, 346-47 (D.C.1992), having evolved from dictum in a twenty-six-year-old case 6 decided by the United States Court of Appeals for District of Columbia, a court that no longer applies that standard itself because it is bound by Huddleston .
It is also significant that we have never expressed, in so many words, the reason that a showing by clear and convincing evidence is either necessary or appropriate. See also Daniels, supra, 613 A.2d at 347 ; Groves v. United States, 564 A.2d 372, 374 (D.C.1989) modified per curiam, 574 A.2d 265 (1990); Lewis v. United States, 567 A.2d 1326, 1330 (D.C.1989). The closest thing to an explanation of the need for that standard can be found in Groves where, in discussing Huddle-ston, the court observed that “Rule 404(b)’s policy of presumed admissibility differs significantly from this court’s approach to the admission of other crimes evidence,” Groves, supra, 564 A.2d at 375 n. 5. With respect, the Groves court’s characterization of Rule 404(b) misinterprets that rule. Rule 404(b) begins, as does the Drew rule, by saying that “[e]vi-dence of other crimes ... is not admissible ...” (emphasis added). See note 2 supra. That is not the language of “presumed admissibility,” nor does it differ from our own law on the subject. Ante at 1100, note 17; supra note 4. Moreover, the en banc court today has significantly softened any rule of presumptive inadmissibility, that we may have previously applied in this context, by holding that evidence that qualifies for admission under any of the Drew exceptions should be excluded only if “the danger of unfair prejudice that it poses substantially outweighs its probative value.” Ante at 1101. Therefore, the only justification for the higher standard that has ever been expressed in our cases has been substantially undercut by the opinion of the court in this case today. Because the only basis for the rule effectively has been eliminated, the rule itself serves no further useful purpose. Indeed, as one judge of this court has said: “I think it would make sense to conform our jurisprudence to Hud-dleston; a proposition convincing to all nine of the Supreme Court justices surely merits our consideration.” Daniels, supra, 613 A.2d at 349 (Schwelb, J., concurring).
With respect to the provision in Rule 404(b) requiring the prosecutor to provide advance notice of its intent to use such evidence, there are several reasons why we should not hesitate to adopt that practice. First, speaking entirely from my own experience as a trial judge in the Superior Court from 1981 to 1991, I found that requiring advance notice of “other crimes” evidence improved both the court’s and the parties’ ability to efficiently resolve the cases affected. For example, before an advance notice *1108 requirement was adopted, motions by the prosecutor, seeking admission of this kind of evidence, were generally made near or on the day of trial. Such late notice almost always prompted a defense request to postpone the trial based on the entirely reasonable ground that counsel needed additional time to investigate the circumstances of the “other crimes” evidence. 7 As a result, trials were frequently delayed. Requiring advance notice, however, essentially eliminated that problem. Moreover, with advance notice the court could rule on the admissibility of the evidence in advance of trial. Thus, well before trial, the defense was afforded a view of the nature of some of the evidence it would face, and the parties knew exactly what evidence the trial judge would, or would not, admit on that subject. Because of this early knowledge of the case, the parties would often reach some sort of disposition before the trial date.
Second, although I have not made a count, I have the impression that most Superior Court judges currently require advance notice so that imposing such requirement would not come as a major change in practice. See ante note 17. In Ford, supra, 647 A.2d at 1184, we stated “In view of our disposition of this case ... consideration of whether a [notice] requirement should be adopted for this jurisdiction ... can be left to another day.” I submit that “day” has come and we should simply take the course that naturally follows from our adoption of Fed.R.Evid. 403 today, i.e., we should adopt Fed.R.Evid. 404(b) as well.
APPENDIX
In Huddleston v. United States, 485 U.S. 681, 687 , 108 S.Ct. 1496, 1500 , 99 L.Ed.2d 771 (1988), the Supreme Court, interpreting Fed. R.Evid. 404(b), rejected the contention that the trial court must make a preliminary finding that the government has proved the “other acts” by at least a preponderance of evidence. The Court held that, subject to a probative/prejudicial balancing, other crimes evidence is admissible “if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act.” Id. at 685 , 108 S.Ct. at 1499 . Although an exhaustive examination of the state courts’ responses to Huddleston has not been undertaken, preliminary research revealed the following:
I. Courts in sixteen states have explicitly or implicitly adopted the Huddleston rule on admissibility of other crimes evidence: State v. Barr, 183 Ariz. 434 , 904 P.2d 1258, 1264 (Ct.App.1995); State v. Santiago, 224 Conn. 325 , 618 A.2d 32, 41 (1992); People v. Davis, 248 Ill.App.3d 886 , 187 Ill.Dec. 660, 666-67 , 617 N.E.2d 1381, 1387-88 (1993); Christian-Hornaday v. State, 649 N.E.2d 669, 672 (Ind.Ct.App.1995); State v. Crawford, 672 So.2d 197, 207 (La.Ct.App.1996); State v. Dean, 589 A.2d 929, 933 (Me.1991); Commonwealth v. Wotan, 37 Mass.App.Ct. 727 , 643 N.E.2d 62, 66 (1994); Gayten v. State, 595 So.2d 409, 415 (Miss.1992); State v. Thompson, 244 Neb. 375 , 507 N.W.2d 253, 268 (1993), but see Neb. Evid. R. 27-404 (subsection (3) added to require that court find by clear and convincing evidence); State v. Moore, 335 N.C. 567 , 440 S.E.2d 797, 813 (1994); State v. Broom, 40 Ohio St.3d 277 , 533 N.E.2d 682 , 690 n. 1 (1988); Blakely v. State, 841 P.2d 1156, 1158 (Okla.Cir.1992); State v. Johnson, 313 Or. 189 , 832 P.2d 443, 453 (1992); State v. Winter, 162 Vt. 388 , 648 A.2d 624, 631 (1994); State v. Herzog, 73 Wash.App. 34 , 867 P.2d 648, 654 (1994); State v. Landrum, 191 Wis.2d 107 , 528 N.W.2d 36, 40 (1995).
II. Three states acknowledged Huddle-ston, but adopted a “preponderance of evidence” admissibility standard: People v. Garner, 806 P.2d 366, 373 (Colo.1991); Harrell v. State, 885 S.W.2d 433, 438 (Tex.Ct.App.1992); State v. McGinnis, 193 W.Va. 147 , 455 S.E.2d 516, 526-27 (1994).
III. Courts in five states either rejected Huddleston for all purposes, or under a specified circumstance, or because there was contrary higher court precedent that predated Huddleston: State v. Cohen, 634 A.2d 380, 391 (Del.Super.Ct.1992) (applied clear and convincing standard for evidence phase of a capital sentencing proceeding; silent on Huddleston's applicability under other circumstances); Phillips v. State, 591 So.2d 987, *1109 989 (Fla.Dist.Ct.App.1991) (followed binding precedent of state Supreme Court, requiring clear and convincing evidence, that had been established before Huddleston); State v. Gruber, 132 N.H. 83 , 562 A.2d 156, 159-60 (1989) (adhered to requirement that there be “clear proof’ of other crime); State v. Cofield, 127 N.J. 328 , 605 A.2d 230, 235 (1992) (held “evidence of the other crime must be clear and convincing”); Pena v. State, 780 P.2d 316, 318 (Wyo.1989) (without reference to Huddleston , followed previous practice of requiring “plain, clear and convincing” evidence).
.We have specifically adopted the following Federal Rules of Evidence: 405(a), 406, 703, 705, 801(d)(2)(E), and 804(b)(3). See Rogers v. United States, 566 A.2d 69, 75 (D.C.1989) (en banc) (adopts Rule 405(a), permitting a character witness to testify as to the witness’s own opinion of a parly's character); Smith v. United States, 583 A.2d 975, 983 (D.C.1990) (adopted approach of Rule 406 which provides that evidence of the routine practice of an organization is admissible to show that organization's conduct on a particular occasion was in conformity with the routine practice); In re Melton, 597 A.2d 892 , 901 n. 10 (D.C.1991) (en banc) ("we adopt the language of Rule 703” relating to an expert witness’s reliance upon "facts or data” which themselves are not admissible); Clifford v. United States, 532 A.2d 628, 633-35 (D.C.1987) (adopted provision of former version of Rule 705 "under which trial court may order that a party proffering expert testimony turn over ... any report ... on which the expert relied in forming the opinion” which will be expressed during testimony); Butler v. United States, 481 A.2d 431, 439 (D.C.1984), cert. denied, 470 U.S. 1029 , 105 S.Ct. 1398 , 84 L.Ed.2d 786 (1985) ("[w]e hereby adopt Fed. R.Evid. 801(d)(2)(E) as controlling”; “[W]e also conclude, consonant with the approach of all the federal circuits, that under Fed.R.Evid. 104(a), the judge should determine the ultimate admissibility of coconspirators' statements”); Laumer v. United States, 409 A.2d 190 (D.C.1979) (en banc) (adopting approach of Fed.R.Evid. 804(b)(3) for statements against penal interest).
. Our "other crimes” admissibility rule traces its beginnings to Drew, supra, 118 U.S.App.D.C. at 15-16 , 331 F.2d at 89-90 , where the court held 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 ... [, however,] [e]vidence of other crimes is admissible when relevant to (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan ..., and (5) ... identily_"
. See Daniels v. United States, 613 A.2d 342 (D.C.1992).
. The majority is understandably reluctant to adopt Rule 404(b) at this time because the issue has not been briefed by the parties. I agree that courts generally should not decide issues that have not been briefed, however, I would make an exception in this instance for two reasons. First, I am not suggesting that we adopt some untested principle that has not been subjected to the intense scrutiny, by the bench and bar, that the provisions of the Federal Rules of Evidence have undergone. Acceptance of those rules is widespread, and, where we have adopted specific provisions of the Federal Rules of Evidence in *1107 the past, we have, as often as not, done so without the benefit of the parties’ views on the point. For example, an examination of the briefs filed in the six cases cited in footnote 1 shows that the parties did not address the question in three of them: Clifford, Butler, and Smith . In fact, in Butler , we went considerably beyond simple adoption of a federal evidentiary rule. In that case we adopted both Fed.R.Evid. 801(d)(2)(E) relating to the admissibility of a coconspirator’s out-of-court assertion as non-hearsay evidence, and the approach of Fed. R.Evid. 104(a) requiring the trial judge, not the jury, to determine admissibility. Id. at 439 . The court also adopted, however, without any input from the parties, two limitations on admissibility of this evidence even though there was sharp division among the federal courts concerning the propriety of those limitations. Id. at 440-41 . This history demonstrates that adopting provisions of the Federal Rules of Evidence by this court, without formal briefing, is not without precedent. Second, adoption of the Huddleston rule would be consistent with the decision made by the overwhelming majority of state courts that have decided the issue since Huddleston was decided. The cases addressing the issue are set forth in the appendix to this opinion.
. In that regard, compare the language of Fed. R.Evid. 404(b) with the quote from Drew set forth in note 2 supra.
. United States v. Bussey, 139 U.S.App. D.C. 268, 273 n. 23, 432 F.2d 1330 , 1335 n. 23 (1970).
. See Ford v. United States, 647 A.2d 1181, 1185 (D.C.1994).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9694297. Public record. Not legal advice.