Johnson v. United States

683 A.2d 1087, 1996 D.C. App. LEXIS 217, 1996 WL 593750

• Court: District of Columbia Court of Appeals
• Decided: October 17, 1996
• Docket: 91-CF-5
• Status: Published

Opinions

BELSON, Senior Judge:

The issues presented by this case lead us to reexamine the law of this jurisdiction concerning the admission of evidence of crimes other than the crime with which a defendant is charged. Having done so, we reaffirm the longstanding principle set forth in Drew v. United States1 that evidence of another crime is inadmissible to prove disposition to commit the crime charged. At the same time, we continue to recognize that the inadmissibility of such evidence of other crimes may be overcome if it is offered on and determined to be relevant to a material issue in the case. We also reaffirm that the Drew rule has application only to evidence of another crime that is independent of the crime charged, and that it does not apply to evidence of acts, including criminal conduct, that directly proves the crime charged. We will follow the policy set forth in Federal Rule of Evidence 403 that evidence, although relevant and otherwise admissible, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, and will apply that policy not only to admission of evidence generally, but also to the decision whether or not to admit evidence of other crimes that qualifies for admission under the exceptions to the Drew rule.

I.

Appellant William A. Johnson was convicted by a jury of premeditated first degree murder while armed (D.C.Code §§ 22-2401, -3202 (1996 Repl.)), conspiracy to distribute and possess with intent to distribute narcotics (D.C.Code § 33-541(a)(l) (1993 Repl. & 1996 Supp.)), possession of a firearm during a crime of violence (D.C.Code § 22-3204(b) (1996 Repl.)), and carrying a pistol without a license (D.C.Code § 22-3204(a) (1996 Repl.)). He appeals his conviction on the grounds that the trial court incorrectly permitted the prosecution to introduce evidence of uncharged crimes, that the prosecution improperly failed to disclose exculpatory material, and that the trial court erred in admitting against him certain statements of a co-conspirator. A majority of a division of this court voted to reverse appellant’s conviction on the basis of his other crimes argument without reaching his other points. (Slip op., November 10, 1994). Appellee United States of America petitioned for rehearing or rehearing en banc. The petition for rehearing en banc was granted, and the prior decision and order of the court vacated. We now affirm appellant’s convictions.

In this opinion, we concern ourselves primarily with the other crimes evidence issue which split the division. We explain why we are satisfied that the trial court did not abuse its discretion when, having analyzed the issues before it by applying the body of law that has developed concerning “other crimes” or Drew evidence, it ruled before trial that the disputed evidence would be admitted. We hold additionally, however, that the evidence was direct proof of the crime charged and admissible as such without regard to any exception to the policy of presumed prejudice and resulting exclusion described in Drew. We give the reasons for our conclusion that the trial judge did not abuse his discretion in the manner in which he controlled the development and use of the evidence at trial. Finally, we find unpersuasive the Brady² and evidentiary arguments Johnson advances.

II.

The government alleged that appellant Johnson and Bruce Void killed Tyrone Car-rington, their partner in a cocaine and phen-cyclidine (PCP) operation. On the night of September 1, 1989, while he sat in his car in the District, Carrington was shot twice in the head, once from the passenger side of his car with a .38 caliber bullet, and once from the driver’s side with a .45 caliber bullet. Minutes before Carrington was killed, he was seen near the scene of the murder driving his car with Johnson in the passenger seat and Void closely following behind in Void’s sport utility vehicle.

Whoever shot Carrington inferably stole his portable telephone and key chain, the latter of which held keys for both the car and a nearby Maryland apartment. The apartment doubled as the production center of the narcotics ring and a home for three persons, Carrington’s son, Carrington’s girlfriend, Crystal Brown, and Brown’s younger brother. Minutes after Carrington was shot, calls were placed to the apartment from the portable telephones of both Carrington and Void. Less than an hour after the shooting, following an unforced entry into the apartment, drugs and a nine millimeter pistol were stolen from a rifled bedroom closet (the only place in the home that was ransacked), and the two boys who lived there were shot and killed. The boys, with whom Johnson had played on prior occasions, were ages twelve and thirteen. A week after the killings, appellant and Void were stopped by Maryland police in Void’s truck, and the stolen nine millimeter pistol was found in Johnson’s possession. The boys were killed by bullets fired from the same .45 that was used to shoot Carrington.

Johnson and Void were charged in a single indictment with the premeditated murder of Carrington, conspiracy to distribute and possess narcotics, and a weapons charge. The indictment alleged, as overt acts in furtherance of the conspiracy, that the defendants had, among other things, robbed the Maryland apartment of drugs, guns, and money, and shot the two boys. Johnson’s case was severed from Void’s. Johnson was tried first in response to his speedy trial demand, and was found guilty of the murder, drug distribution conspiracy, and weapon charges. In a subsequent trial, Void was convicted on all counts, and a division of this court affirmed his conviction. Void v. United States, 631 A.2d 374 (D.C.1993).

III.

A. The Pretrial “Other Crimes” Motion and Ruling

Prior to trial, Johnson moved to bar the government from eliciting evidence of “other crimes,” focusing particularly on evidence of the killing of the two boys.³ The government successfully opposed the motion. At trial, the evidence of the Maryland slayings was admitted.

In moving before trial to exclude the evidence, Johnson urged application of the strictures against “other crimes” evidence laid out in Drew, supra. Johnson asserted that the evidence was inadmissible because the government had not established, by clear and convincing evidence, that Johnson was connected with the other crimes, as required under Drew and its progeny. Alternatively, appellant argued that the danger of prejudice presented by the admission of the evidence outweighed its probative value and that it should be excluded on that ground.

The government sought admission of the evidence of the Maryland killings under two separate theories. First, the government asserted that, assuming that Drew rules were applicable, they were satisfied here because it proposed to use the evidence to prove the identity of the accused, a recognized exception to Drew. This was true, argued the government, because the killers of the children and Carrington were almost certainly the same. Supporting this assertion, the government pointed to the significant chronological and evidentiary links between the two crimes, the inference that whoever entered the Maryland apartment knew what they would find (knowledge rather uniquely held by Void and Johnson), and the fact that the boys knew Void and Johnson, thus providing the two with a special reason to kill the boys to prevent identification. The government urged that the second prong of Drew was satisfied because the danger of prejudice was outweighed by the probative value of the evidence. Also, in response to an argument by co-defendant Void, whose case had not yet been severed, the government insisted that the evidence could not be “sanitized” by, for example, telling the jury only that the same gun that killed Carrington had been used in the apartment, rather than telling them that bullets from that gun were removed from the bodies of the two children.

The government’s second argument for admission was that the evidence fell outside the special rules of Drew because it was direct proof of the narcotics conspiracy. In this regard, the government relied exclusively upon the argument that the grand jury had listed the Maryland killings as overt acts of the conspiracy, and thus the government had to prove that they occurred. The government did not use as a fallback the argument that the evidence of the Maryland acts was direct proof of Carrington’s murder and therefore was admissible even apart from the argument that it proved an overt act of the conspiracy.

The motions court found that the Drew requirements were satisfied. It held that, by the proffered evidence, the prosecution had established clearly and convincingly that Johnson committed the uncharged crimes. Evidence that the same person committed both crimes was “powerful,” according to the court. The court also ruled that the evidence was admissible regardless of Drew because it was directly relevant to the conspiracy, inasmuch as it proved one of the overt acts of the conspiracy. The motions court also found that the probative value of the evidence outweighed its prejudicial effect.

B. The Threshold Drew Ruling was not an Abuse of Discretion

We are satisfied that the trial court did not abuse its discretion in concluding at the pretrial motions stage that the disputed evidence was admissible. The trial court ruled on the assumption that the Drew line of cases applied to the issues surrounding evidence of the Maryland crimes. As we will explain, the Drew strictures upon admission of other crimes evidence do not apply to evidence directly proving a defendant’s guilt. But even assuming that a Drew analysis was required in this case, as the trial court for the most part assumed, we would not overturn the trial court’s discretionary ruling that the evidence should be admitted.

1. The Drew Rule

If evidence of prior bad acts that are criminal in nature and independent of the crime charged is offered to prove predisposition to commit the charged crime, it is inadmissible. As stated in Drew:

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. Since the likelihood that juries will make such an improper inference is high, courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose.

118 U.S.App. D.C. 11, 15-16, 331 F.2d 85, 89-90 (emphasis in original; footnotes omitted); see (James) Jones v. United States, 477 A.2d 231, 237 (D.C.1984); Sweet v. United States, 449 A.2d 315, 318-19 (D.C.1982).

Generally, two things must be established to avoid application of the presumption of prejudice that attends other crimes evidence. First, the evidence must be offered for a “substantial, legitimate purpose,” including, but not limited to, one of the following issues: (1) motive; (2) intent; (3) absence of mistake or accident; (4) common scheme or plan; or (5) identity. Drew, 118 U.S.App. D.C. at 16, 331 F.2d at 90. Second, even if the court determines that such evidence is being offered for a legitimate purpose, the court must additionally consider the relative probative value of the evidence and the danger of unfair prejudice that it poses, and conclude that the balance favors admission. German v. United States, 525 A.2d 596, 607 (D.C.), cert. denied, 484 U.S. 944, 108 S.Ct. 331, 98 L.Ed.2d 358 (1987).

If there has not been a final adjudication of guilt as to the other crime, our decisions have also required the prosecution to establish, by clear and convincing evidence, that the other crime occurred and that the defendant committed it. Groves v. United States, 564 A.2d 372, 374 (D.C.1989), modified on other grounds, 574 A.2d 265 (D.C.1990) (en banc); see Roper v. United States, 564 A.2d 726, 731 (D.C.1989). But see Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (discussed in footnote 18, infra).

2.Purpose for Admission other than Predisposition

We have no difficulty concluding that the trial court could reasonably have concluded that the evidence was not offered to prove predisposition to commit the charged homicide. To begin with, the prosecution stated that it was offering the evidence to prove the principal contested issue in the case, identity, and carefully laid out just why this evidence was integral to proof of identity.⁴ The very detail of this presentation — it included each of the central facts connecting the two incidents — lent force to the prosecution’s assertion that it was not offering the evidence to prove predisposition to commit a crime.⁵

It is possible, of course, to advance a pre-textual purpose for admission of evidence which bears “wholly or primarily” on predisposition, Thompson v. United States, 546 A.2d 414, 419-20 (D.C.1988), but the record supports the conclusion that the prosecution was not disguising the purpose of the evidence here. In addition, our reading of the record reveals no instance in which the prosecution or its witnesses explicitly or implicitly suggested to the jury that it conclude that the other crimes evidence evinced a predisposition to commit the charged crime.

3. The Evidence was Admissible Pursuant to the Identity Exception

We are also satisfied that the trial court could properly have found the evidence to fall within the identity exception. The evidence amounted to a crucial link between Johnson and the killing of Carrington. That the same gun was used in both events closely linked the two. The killing of the two boys so short a time after the Carrington murder was additionally probative of the identity of Carring-ton’s killers because it was more likely that the burglars of the apartment would kill the boys in order to silence them if the boys knew the burglars. Thus, the killing of the boys greatly narrowed the class of persons potentially responsible for Carrington’s murder. It is hardly surprising that the government pressed for admission of the evidence, as identity was not merely a genuine issue in the case, but the only real issue.

4. Clear and Convincing Standard Met

Addressing another Drew requirement, the trial court had ample support on the record for its conclusion that there was clear and convincing evidence that the Maryland killings in fact occurred and that Johnson was “connected” to them. See Groves, supra, 564 A.2d at 374. There was no dispute that the killings in Maryland occurred. Further, Johnson was substantially connected to the killings in several ways: he was seen with Carrington moments before Carrington’s cellular phone and keys were stolen; a call was placed on the phone moments later to the apartment, which was shortly thereafter subjected to an unforced entry; Johnson knew, almost uniquely, what was in the apartment; the boys knew Johnson (thus providing him with a special motive for killing them so as to prevent his identification); and the nine millimeter pistol stolen from the apartment at the time of the killings was both given by Johnson to Brown for safekeeping days before the shootings and found in appellant’s possession days later. In short, it would be unreasonable to require more substantial “connections” between Johnson and the Maryland killings.⁶

5. Probative Value and Danger of Unfair Prejudice

We cannot say that the motions court abused its discretion in finding that the probative value of the evidence exceeded the danger of unfair prejudice.⁷ As to probative value, the evidence substantially advanced the prosecution’s case. That the .45 was used to kill the two boys in the apartment, less than an hour after Carrington was killed by the same weapon, closely linked the events in a manner that no other evidence did, and thus peculiarly identified appellant and Void as the perpetrators of the D.C. slaying.

Two other things connected the two events and thus strongly suggested that Johnson took part in killing Carrington: (1) Carrington’s keys to the apartment were missing after he was murdered, and the apartment was entered without force; and (2) the drugs and gun were stolen by someone who knew where they were kept in the house, knowledge which arguably belonged only to Johnson, Carrington, and Brown (Carrington’s girlfriend). However, as the defense could have argued, the entry of the apartment without force could have been made possible by carelessness in locking the door, and there was even the possibility that the two young boys opened the door to the assailants. In addition, as the defense did argue, people other than Carrington’s killers conceivably could have entered the apartment and stolen the drugs and the gun. Thus, the fact of the burglary alone did not provide an unquestionable link between the two events. In contrast, the use of the .45 at both places showed almost ineontrovertibly that the two events were connected. The use of the gun on the two boys, since they were especially likely to be able to identify Johnson and Void, both of whom knew the boys and had played with them, further tended to prove that Johnson and Void killed Carrington. Unquestionably, a burglar known to the children would have a greater reason to fear ultimate detection than one who was unknown to them. And a burglar afraid of being linked by the children to a murder would have substantially greater incentive to silence them by (another) murder than an “ordinary” burglar. See Robinson v. United States, 623 A.2d 1234, 1239 (D.C.1993) (motive evidence can help prove identity). In this fashion the record establishes the prosecution’s need for the evidence of the Maryland killings, reasonable need being a factor to be considered in the balancing of probative value against prejudice regarding otherwise admissible evidence. See Easton v. United States, 533 A.2d 904, 906 (D.C.1987).⁸ This is not to say that exclusion of the evidence of the boys’ murders would be mandated even if the other evidence powerfully implicated Johnson. The factor is “reasonable” need. Juries, in applying the reasonable doubt standard, may demand a showing of a very high probability of guilt, especially when one is accused of first-degree murder.

As to the danger of unfair prejudice, it must be acknowledged that the killing of two innocent boys to keep them from identifying the intruders is worse than deplorable, and the jury would undoubtedly think ill of Johnson if it became satisfied that he did it. We also recognize the danger that a jury might be anxious to blame someone for this heinous act. But it is not likely that the jury used the Maryland crimes as propensity evidence tending to show that Johnson killed Carring-ton given the unique relationship between the evidence and the lone contested issue, identity. The jury, in a word, would not likely have reached conclusions about Johnson’s proclivity for violence before it was satisfied that he was guilty of the charged crime. Compare Light v. United States, 360 A.2d 479, 481 (D.C.1976).

Further limiting the danger of unfair prejudice arising from the Maryland killings was the fact that other evidence of wrongdoing— trafficking in large amounts of narcotics, a shootout earlier on the same day, and the orchestrated “hit” style killing of Carrington by shots to either side of his head — was to be featured prominently as part of the prosecution and the defense cases, thus perhaps making it inevitable that the jury would know from several sources that it was dealing with some very unsavory events.

Finally, we recognize that the evaluation and weighing of evidence for relevance and potential prejudice is quintessentially a -discretionary function of the trial court, and we owe a great degree of deference to its decision. See Light, supra, 360 A.2d at 481 (broad discretion); Joy v. Bell Helicopter Textron, Inc., 303 U.S.App. D.C., 1, 7, 999 F.2d 549, 555 (1993) (trial court discretion at its height when carrying out this function); United States v. Long, 574 F.2d 761, 767 (3d Cir.) (judicial restraint most desirable when reviewing other crimes analysis), cert. denied, 439 U.S. 985, 99 S.Ct. 577, 58 L.Ed.2d 657 (1978). With the foregoing considerations in mind, we cannot say that the motions court abused its discretion in finding that the probative value of the evidence of the shooting of the boys in Maryland outweighed the danger of unfair prejudice posed by it.⁹

C. It was not Necessary to Apply Drew Here

We have reviewed the motions court’s decision to admit the challenged evidence as a Drew issue because the government was proposing the evidence under the Drew identity exception (save for reference to an overt act of a conspiracy), and the motions court ruled in that context. But, having explained why we find no abuse of discretion in the motions court’s Drew ruling, we point out that the Drew strictures were not applicable here because the evidence of the Maryland murders did not fall within the Drew rule at all. Rather, given that the evidence of the Maryland killings was such direct proof of appellant’s guilt of the instant charge that the two occurrences could not be said to be independent of one another, Drew did not apply.

We recognize that it is debatable whether this legal position was adequately preserved by the prosecution as its argument to the motions court that the Maryland acts were direct proof dealt only with an overt act of the conspiracy which was later withdrawn. (Azam) Ali v. United States, 520 A.2d 306, 312 (D.C.1987); cf. (Tyrone) Johnson v. United States, 610 A.2d 729, 730-31 (D.C.1992). But we think it appropriate to discuss the direct proof analysis here both to identify it as an alternative basis for our holding and to clarify an area in which there has been confusion, as this ease illustrates, i.e., the distinction between evidence of other crimes that is subject to Drew strictures and other evidence which is not independent of the crime charged and thus admissible as direct proof of guilt.

Although it may be convenient simply to plug any evidence of uncharged offenses into a Drew analysis, it is important to remember that this has never been the appropriate course. To explain why it has not been, we begin with Drew itself.

Drew involved an assertion of prejudicial joinder. This led the United States Court of Appeals for the D.C. Circuit, then the highest court of this jurisdiction, to consider whether the evidence of one of the two joined offenses could properly have been used to prove the other joined offense, and occasioned the court’s focus on the policy against admitting evidence that merely proves disposition to commit crime. Drew made it abundantly clear that its prohibition was directed at crimes independent of the crime charged. Thus, the Drew court quoted from McElroy v. United States, 164 U.S. 76, 79-80, 17 S.Ct. 31, 32-33, 41 L.Ed. 355 (1896), where the Supreme Court noted that the applicable joinder statute did not authorize “the joinder of distinct felonies, not provable by the same evidence and in no sense resulting from the same series of events.” 118 U.S.App. D.C. at 15, 331 F.2d at 89 (emphasis supplied by Drew court). Based on these statements and others, the Drew court concluded in relevant part that when “the two crimes arose out of a continuing transaction or the same set of events” the danger of admitting evidence of both in one trial is minimal. 331 F.2d at 90.

In Miles v. United States, 374 A.2d 278, 282 (D.C.1977), this court explained the relationship between the uncharged other crime and the charged offense in a case in which joinder was not an issue. There 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.

In (Abdus-Shahid) Ali v. United States, 581 A.2d 368, 375 (D.C.1990), cert. denied, 502 U.S. 893, 112 S.Ct. 259, 116 L.Ed.2d 213 (1991), after analyzing the relationship between the charged offense and the uncharged crime (possession, several weeks before the charged murder, of a sawed-off shotgun like the one used in the murder), this court held that the evidence of the uncharged crime was relevant to the charged offense “and thus not an independent crime.” Id. at 376. “Rather,” we concluded, the evidence “constituted evidence of the crime charged” and was thus admissible. Id. at 377. Our holding in (Ab-dus-Shahid) Ali was consistent with the principle that “[a]n accused person’s prior possession of the physical means of committing the crime is some evidence of the probability of his guilt, and is therefore admissible.” Coleman v. United States, 379 A.2d 710, 712 (D.C.1977).

We later stated unequivocally in King v. United States, 618 A.2d 727, 730 (D.C.1993):

Our cases have repeatedly held that admissibility of this kind of evidence [possession of pistol allegedly used in assault with intent to kill] is based upon a determination of whether it was directly relevant to some issue in the case. We have never held, and do not do so now, that such evidence must meet the standards established by the Drew line of cases. (Citation omitted.).

See generally Edward Imwinkelreid, UNCHARGED MisCONduot Evidenoe (“Imwinkel-reid”) §§ 6.03-.13 (1994). Thus, in Sweet v. United States, 449 A.2d 315, 319 (D.C.1982), we held that the Drew strictures were not applicable where the defendant’s inculpatory statements to the victim, to the effect that he had killed or raped other persons, were offered solely to establish the mental state of the victim of the rape.

In Thomas v. United States, 588 A.2d 272 (D.C.1991), the defendant was charged with maintaining a bawdy or disorderly house in violation of D.C.Code § 22-2722 (1989 Bepl.). The house was the subject of a stakeout between July 16th and 17th, but the defendant was not arrested until ten days later. The defendant claimed that evidence gathered during the stakeout was “other crimes” evidence that was presumptively inadmissible. The court, however, noted that the government had to prove regular use of the house for illegal or immoral acts, and evidence of events of the two earlier days was needed to show regularity of improper use. It added:

Drew evidence is evidence of another crime independent of the crime charged. The evidence from July 16-17 and 28 was not admitted as evidence of another, independent crime. Thus, it was not even arguably admitted for the improper purpose of proving appellant’s bad character or disposition to commit crimes.

Id. at 274 (citation omitted; emphasis in original); see (Abdus-Shahid) Ali, supra.

Likewise, in Lee v. United States, 471 A.2d 683, 686 (D.C.1984), where one accused of rape while armed with a knife complained of evidence that he had carried a knife in his car, the court noted that a limiting instruction regarding propensity is not necessary “when evidence of one crime is inextricably intertwined with the evidence necessary to the proof that he committed the crime charged.” See (James) Johnson v. United States, 596 A.2d 980 (D.C.1991).¹⁰

The Lee statement of the “inextricably intertwined” rule was rooted in Smith v. United States, 312 A.2d 781 (D.C.1973). In Smith, one of the first post-Drew cases dealing with threats to witnesses by defendants, the evidence of the threat was held not to be controlled by Drew because it was “an admission, directly relevant to guilt, [and] is entwined with other evidence, a threat, such other evidence tending to prove another, but unrelated criminal act, obstruction of justice.” 312 A.2d at 785; see Edward Ford v. United States, 647 A.2d 1181, 1185 (D.C.1994) (post-crime conduct — failure to appear for trial — relevant to show consciousness of guilt); see also Wages v. United States, 594 A.2d 1053, 1055 (D.C.1991) (leaving undecided whether defendant’s attempt to bribe witness was “other crimes evidence — rather [than] circumstantial evidence of the crime charged”).

A related situation not governed by Drew arises when evidence is offered “to explain the immediate circumstances surrounding the offense charged.” . Green v. United States, 440 A.2d 1005, 1007 (D.C.1982) (evidence necessary to “complete the story”); see Campbell v. United States, 450 A.2d 428, 430 n. 4 (D.C.1982) (same); Wooten v. United States, 285 A.2d 308, 309-10 (D.C.1971) (evidence of uncharged offense is admissible to explain circumstances of charged offense). In those instances, we are dealing with “‘events so closely related to the charged offense in time and place that they are necessary to complete the story of the crime ... by placing it in context of nearby and nearly contemporaneous happenings.’” Holmes v. United States, 580 A.2d 1259, 1266 (D.C.1990) (quoting Williams v. United States, 549 A.2d 328, 383 (D.C.1988)); Toliver v. United States, 468 A.2d 958, 961 (D.C.1983).

From the foregoing, it is clear that Drew’s strictures do not come into play in every instance in which evidence offered to prove guilt of the charged offense could be offered in support of a prosecution of another crime. Specifically, Drew does not apply where such 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.

In this case then, the evidence of the Maryland murders was admissible quite apart from any Drew exception. The Maryland murders were not independent because the same evidentiary stream ran through them and the charged crime. The same gun was used in both, they occurred close to one another in time — the second occurring in part arguably as a consequence of the first— and they tend to prove one another, for the cogent reason (among others) that the perpetrators of each were known to the two Maryland victims, and for that reason killed them. Thus, the evidence of the Maryland offenses falls into the first of the non -Drew categories described above — direct and substantial proof of Johnson’s guilt of Carrington’s murder.¹¹ The Drew presumption against admission of true “other crimes” evidence was not applicable here.

D. The Balancing Test in General

This case demonstrates the importance of the balancing of probative value against the potential for unfair prejudice that trial judges must perform whenever relevant evidence poses a danger of unfair prejudice. When the Drew rule applies but the proffered evidence falls within one of its exceptions, just as in this case of direct proof not subject to Drew, the trial court must weigh the apparent probative value of the evidence against the unfairly prejudicial effect that it is likely to have, and thereby determine whether to admit it.

In close cases, at least, that determination may be controlled by whether (1) admission is appropriate only where probative value exceeds prejudicial impact or, conversely, (2) admission should be permitted unless prejudicial impact exceeds (or substantially exceeds) probative value. The difference is not merely semantic, as it may spell the difference between admission and exclusion; indeed, the choice we make says much about our system’s confidence in juries and hence its receptivity to evidence that is conceded to be relevant. Cf. Winfield, supra, 676 A.2d at 7.

In cases where Drew is applicable, we have stated the rule both ways. See, e.g., Campbell, supra, 450 A.2d at 430; Jones v. United States, 477 A.2d 231, 237 (D.C.1984). In cases not subject to Drew, there has also been a lack of consistency.¹² We think it important that the rule be stated clearly. Therefore, we take this opportunity to clarify that, regarding the admission of evidence generally, this jurisdiction will follow the policy set forth in Federal Rule of Evidence 403 — “evidence [otherwise relevant] may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ...¹³ and will apply that policy in the other crimes context as well. We will discuss briefly the considerations that have led us to these conclusions.

Several of our opinions have cited FRE 403 as authoritative. See, e.g., Reed v. United States, 584 A.2d 585, 591 (D.C.1990); Lampkins v. United States, 401 A.2d 966, 970 & n. 9 (D.C.1979). Thus, a treatise could state that FRE 403 is consistent with practice in the District of Columbia. Steffen GRAAE & Brian Fitzpatrick, The Law of EVIDENCE IN THE DISTRICT OF COLUMBIA ÍV-12 (1995); see also Report of the Committee on Court Rules of Division IV of the District of Columbia Bar Proposing Rules of Evidence for the Superior Court Based on the Federal Rules of Evidence, Comment to Rule 403 (Feb. 2, 1984). Most significantly, however, this court relied upon Rule 403 in affirming a trial court ruling excluding certain evidence because its “probative value ... was substantially outweighed by danger of [prejudice].” Reed, supra, 584 A.2d at 591. While in Reed the trial court apparently had not expressed the outcome of its consideration of the proposed evidence in those terms, this court inferred from the trial court’s explanation of its ruling that it had found that prejudice substantially outweighed probative value. Id. at 587 n. 1, 591.

Because we announce that we will follow FRE 403, we should take note of its requirement that the danger of unfair prejudice substantially outweigh probative value before relevant evidence may be excluded. While the commentary to the Federal Rules of Evidence and the legislative history of the rules are quite extensive, they do not discuss why the word “substantially” was used. See Gregory Joseph & Stephen Saltzburg, Evidence in America — The Federal Rules in the States § 13.3 at 5 (1987). The “substantially outweighs” approach is apparently the product of the general federal policy promoting the admission of as much relevant evidence as reasonably possible. See Huddleston v. United States, 485 U.S. 681, 688-89, 108 S.Ct. 1496, 1500-01, 99 L.Ed.2d 771 (1988); JACK Weinstein, Margaret Berger & Joseph MoLaughlin, Weinstein’s Evidence (“Weinstein’s Evidenoe”), Preface at xvi (1995 ed.); Clifford Fishman, 2 Jones on Evidenoe § 11:10 (7th ed.1994); see also Laumer v. United States, 409 A.2d 190, 195 (D.C.1979) (en banc).

Federal Rule of Evidence 403, or at least its requirement that the danger of unfair or undue prejudice “substantially” outweigh probative value, has been adopted by at least forty of the states.¹⁴ Only Alaska, which otherwise wholly adopted FRE 408, chose not to include the qualifier “substantially.”¹⁵ While it has been suggested that the import of adding the word “substantially” may not be great,¹⁶ it is reasonable to anticipate that trial judges will exercise their discretion to admit such evidence in some instances in which they otherwise might not do so. Cf. Allen v. United States, 603 A.2d 1219, 1224 (D.C.) (en banc), cert. denied 505 U.S. 1227, 112 S.Ct. 8060, 120 L.Ed.2d 916 (1992) (“Probative evidence should not be excluded because of crabbed notions of relevance or excessive mistrust of juries.”) (quoting Riordan v. Kempiners, 831 F.2d 690, 698 (7th Cir.1987)).

Having considered the matter, we have determined to use the formulation set forth in FRE 403, including the word “substantially,” in connection with the admission of evidence generally when it is challenged as “unfairly prejudicial.” Our doing so will further the policy of admitting as much relevant evidence as it is reasonable and fair to include, and will also gain for this jurisdiction the advantage that uniformity with the federal rule and the vast majority of state rules affords for interpretation and application.

We conclude that we should also follow that same policy regarding evidence that is subject to a Drew analysis but qualifies for admission under any of the exceptions to Drew. We recognize that the prevailing view at common law was that the proponent of such evidence had the burden of persuading the trial judge that on balance the probative value outweighed unfair prejudice. See ImwinkelREID, supra, § 8:27. Since the adoption of FRE 403 and FRE 404(b),¹⁷ however, the balancing procedure in federal courts has evolved. The Supreme Court settled the question decisively for federal courts in Huddleston, supra, 485 U.S. at 681, 108 S.Ct. at 1406-97, when it used the FRE 403 requirement that probative value be “substantially outweighed” by the danger of unfair prejudice in its analysis of an issue arising under FRE 404(b) involving other crimes. Id. at 687, 691, 108 S.Ct. at 1500, 1502;¹⁸ see John STRONG, I MoCoRMICK on Evidence § 190, at 811 (4th ed.1992).

In summary on this point, then: if other crimes evidence is offered to prove propensity to commit an offense, it is inadmissible. If other crimes evidence subject to a Drew analysis is offered, it may be admitted only if it qualifies for an exception to the Drew rule restricting its use. We reiterate that, when evidence is correctly analyzed as coming within Drew’s purview, “the prosecutor has the burden of showing that the evidence falls within one or more of the recognized exceptions.” Thompson, supra, 546 A.2d at 424 n. 18. Furthermore, we do not consider here, and therefore leave intact, the requirement that evidence that defendant committed the other crime in question must be established preliminarily by clear and convincing evidence. See note 18, supra. Even if the evidence so qualifies, the trial judge should¹⁹ still exclude it if the danger of unfair prejudice that it poses substantially outweighs its probative value. In identifying the preferable approach to the admission of such evidence under FRE 408, we are in accord with the following statement by the United States Court of Appeals for the Ninth Circuit: “The government must carry the burden of showing how the proffered [other crimes] evidence is relevant to one or more issues in the case, and must demonstrate that, on balance, its probative value is not substantially outweighed by the danger of unfair prejudice to the defendant.” United States v. Conners, 825 F.2d 1384, 1390 (9th Cir.1987) (citation omitted). On the other hand, 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. In all instances, the proponent of the evidence must satisfy the court that it should be admitted.

E. References to “Other Crimes” Evidence at Trial

At trial before Judge McIntyre, Johnson did not ask the court to reconsider Judge Eilperin’s ruling on the pretrial motion to bar the government from using the evidence of the killings and other activity in Maryland shortly after Carrington’s murder, and evidence relating to Johnson’s possession of handguns before and after that murder. Although the government abandoned all three killings as overt acts of the alleged drug distribution conspiracy, Johnson did not then ask the trial judge to reconsider the pretrial ruling that evidence of the Maryland killings was admissible as direct proof of Johnson’s guilt of the murder of Carrington. Indeed, the trial judge essentially stated in colloquy over a limiting instruction that the use of the same weapon was direct proof of guilt. In reviewing what transpired at trial, we will consider whether the manner in which the government used that evidence at trial was unfairly prejudicial, as Johnson’s counsel asserted at oral argument.²⁰ Ultimately, on the assumption (fully borne out at trial) that the trial judge recognized the danger that relevant evidence might assume unfairly prejudicial form, our inquiry is whether the trial judge abused his discretion in failing to control the development and use of the evidence at trial.

At trial, Johnson’s trial counsel did not object to the manner in which the prosecutor used the evidence of the Maryland occurrences in conducting the examination of witnesses or making opening and closing statements. Nevertheless, the trial judge played a commendable role in keeping control of the presentation and thus minimizing any unfair prejudice that this evidence might have produced. The prosecution undertook to prove by circumstantial evidence that Johnson and his severed accomplice, Void, had killed Carrington. Virtually unassailable was the proof that Johnson, Void, and Car-rington were partners in the sale of narcotics, and that Johnson was riding with Car-rington, immediately followed by Void, a few minutes prior to Carrington’s death. While the foregoing alone powerfully indicated that Johnson had a hand in killing Carrington, reasonable minds could find doubt as to the charge of murder if that were the only evidence supporting that charge. By showing that what occurred after the murder of Car-rington was in all likelihood committed by persons who both knew the inner workings of the drug operation, and had a special reason to kill the boys, the prosecution sought to prove convincingly that Johnson killed Car-rington.²¹

In its opening statement, the prosecution did not suggest that the Maryland killings demonstrated appellant’s propensity to commit the charged offense. The statement contained only three significant mentions of the Maryland killings. The first two were references to the fact of the shootings and the familial relationship of the two boys and a description of the Maryland murder scene. They were relatively brief, and were dry rather than dramatic. Perhaps the most vivid language employed by the prosecution was a reference to all three shootings on the night in question as “a terrible thing.”

The third statement, which came as the prosecutor explained the reaction of Brown as she came home to find the two boys shot, warrants a closer look:

And in her apartment, I believe her testimony is, she heard a moaning sound, she discovered that the two boys were shot ... her boyfriend’s son and her little brother. She went into her room and she found everything pulled out of her closet. And the police’s [sic] testimony and her testimony will show you it was pulled out down to a spot and laying there was the papers for the gun. The gun was gone and the papers were there.

While the use of the word “moaning” was unnecessary, we note that it was one isolated word in the course of a detailed statement. Further, trial counsel did not object to this reference, either during the opening statement or later at the bench. We are satisfied from our reading of the record that there was nothing significantly objectionable or inflammatory about the opening statement’s treatment of the Maryland killings.

Nor did the prosecutor focus unduly on the evidence of the Maryland murders during the presentation of its case, which included the testimony of twenty-eight witnesses. It is true that the prosecutor did elicit the fact of the Maryland killings from its first witness. But that witness, Brown, testified over two days and laid out in critical detail the background of the narcotics conspiracy, which was essential to understanding both that charge and linkages between Johnson and Carrington’s murder. As part of Brown’s chronological relation of events, as she described how she arrived home to discover the door to her apartment unlocked, she stated matter-of-factly that when she looked in the boys’ room she found that each had been shot in the head.

Surely, this testimony had some impact, but we note that Brown’s answers appear to reflect, if anything, a cautious word from the prosecutor to avoid being too emotional. We cannot find that the foregoing was unfairly inflammatory. And while the questioning returned briefly to the deaths of the boys at the close of Brown’s direct testimony, those questions were simple and did not produce emotional answers.

As to references to the Maryland killings by other witnesses, we note that they too were purely factual and do not appear to have been fashioned to suggest propensity. A person who lived next to the Maryland apartment related in a straightforward manner what he heard through the wall (shots and later screams), and crucially related the timing of these events. The testimony of the Maryland detective, who might have been asked to describe a grisly scene, focused largely on the bedroom closet that had been ransacked (presumably by Carrington’s killers) and the identity of the nine millimeter pistol that was inferably stolen from the apartment and later found in Johnson’s possession. Her testimony as to the death of the two boys was dryly factual, and consumed only a page of transcript. Indeed, the killings were not even mentioned during redirect examination of this witness. Nor was unduly graphic testimony provided by those charged with gathering evidence and photographing the scene.

In contrast to the prosecution’s caution, we note that defense counsel waded right into the evidence of the Maryland killings. Of course, that Johnson chose to use this evidence did not amount to. a waiver of his earlier objection to the admission of any other crimes evidence. (Charles) Jones v. United States, 385 A.2d 750, 752 (D.C.1978). Nonetheless, Johnson’s use of this evidence goes directly to whether reversal is required by the manner in which the evidence was presented. See Miles, supra, 374 A.2d at 283 (no error where the defense “made a conscious tactical decision to air fully the evidence”); see also Parker v. United States, 586 A.2d 720, 725 (D.C.1991).

An early example of the defense’s use of this evidence came during the cross examination of the Maryland detective who described the scene in the apartment. Defense counsel questioned her concerning signs of rigor mortis in one of the boy’s bodies, including signs of “rigidity in the face.” And, when the deputy medical examiner who performed the autopsy on Carrington’s body testified, defense counsel did not hesitate to engage him in an anatomically detailed discussion of the paths of the bullets and just which part of the head braked a particular bullet. When cross-examining yet another evidence technician, defense counsel focused on the question of just how much blood was on the bullet that passed through the brain of one of the boys, and the question of whether it had been cleaned. Defense counsel’s lack of squeamishness was also exhibited by three questions he put to a ballistics expert in near-succession:

Q. Now, if it was a .45 caliber weapon and I was shot [in the head from a short distance away], how far would the bullet travel after it had gone through my head?

[[Image here]]

Q. Okay. Well, let me ask you this. Do you know this. Do you know if a bullet goes through somebody’s head, does it generally have blood on it when it comes out the other side?

% ‡ 5ji # Í-C

Q. So would it also be beyond -your expertise to say whether a bullet that goes through somebody’s head and through the portion of the head where the brain is located, would [it] also be beyond your expertise to say whether you would expect to find brain tissue on that bullet; is that correct?

The defense also declined to enter stipulations that might have kept some of the more clinical testimony from coming before the jury. See, Imwinkelreid, supra, §§ 8:11-12 (defense can limit, or even exclude other crimes evidence by entering stipulations admitting the fact on which the evidence would be admissible); Christophek Mueller & Laird Kirkpatrick, Modern Evidence § 4.4 at 262 (1995). For example, defense counsel declined to stipulate to chain of custody, with the result that the testimony of the medical examiner who removed the bullet from one of the bodies was then made necessary. The trial court tried to encourage the stipulation, telling defense counsel, “[0]nce you bring in a doctor who’s going to testify about two killings out there in Maryland, that’s going to have certainly some [e]ffect on the jury.” Similarly, when the prosecutor proposed a stipulation to the effect that the Maryland bullets were found in and around the boys’ bodies, defense counsel noted in refusing:

Your Honor, it occurs to me that we can establish all of that through testimony. I mean, it doesn’t really seem necessary to stipulate to it really. I mean, there are going to be Maryland police officers who were on the scene. They can talk about that and I’m not going to seriously question it, but I don’t think that we need to actually stipulate to it.

Some of the colloquy between court and counsel illustrates the court’s appropriately active effort to reduce the potential impact that any possibly inflammatory material would have on the jury sitting in judgment of Johnson.²² The only potentially inflammatory photograph the court allowed before the jury was one that included the hall entrance-way to the bedroom, but not the apparently bloodied room itself. The court rejected a request that an autopsy photo be shown to the jury. It expressly did not allow the prosecution to play the audiotape of the call Brown placed to 911 immediately after she discovered the bodies, again showing sensitivity to the potentially inflammatory nature of the evidence. Further, at the start of trial, the court granted a defense request to question potential jurors during voir dire concerning whether they would be improperly influenced concerning the District charges by the Maryland homicides, thereby both screening and desensitizing the panel.

The prosecutor touched on the Maryland killings in his summation, saying at one point:

Then you can conclude one of the boys woke up, and the two boys were executed. They would have recognized [appellant and Void], wouldn’t they? Yes. Yes. The same .45 that shot the second bullet into Tyrone Carrington put three bullets in the boys. That’s the point of all that evidence about the three shell casings there lying around the boys, one bullet in the floor where one boy had been, one bullet out of one boy’s ear, one bullet out of one boy. The one who had the one in his ear, another bullet dug out of him in the autopsy in Maryland.

Referring to the “execution” of the two boys may have been unduly dramatic. See Sellars v. United States, 401 A.2d 974, 977-78 (D.C.1979) (describing shooting as execution). Similarly, noting that one bullet came from “one boy’s ear” and that another bullet was “dug out of him in the autopsy in Maryland,” was unnecessarily graphic. Mills v. United States, 599 A.2d 775, 787 (D.C.1991) (“pool of blood” and suffering of victims). Yet we find that these isolated comments do not warrant reversal, especially in light of the fact that defense counsel had so dwelled upon bullets and body parts during the presentation of evidence that the prosecutor’s comments injected little new into the proceedings. Further, in his summation, defense counsel freely discussed the matters of brain tissue and autopsies, again rendering the prosecutor’s argument unstartling. And the prosecutor’s only comment on rebuttal concerning brain tissue was obviously in direct response to the argument defense counsel made concerning the very same material.

We are not suggesting that defense counsel was ineffective in conducting a defense that focused in part on some of the more disturbing evidence. Rather, we point out defense counsel’s questions and summation to show that this material was important and could be handled in a responsible manner. And we can summarize our review of the manner in which evidence of the Maryland killings was used at trial by saying that, in light of all the considerations we have discussed, we are satisfied that Johnson was not unfairly prejudiced.²³ We certainly could not conclude that the trial judge abused his discretion in his exercise of control over the development and use of that evidence.

IV.

Johnson also argues that the prosecutor violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to inform the defense that he had made something in the nature of an offer of leniency to witness Freddie Crawford. We find this claim unpersuasive, and comment on only one facet of it. Freddie Crawford was a defense witness, and therefore the prosecution did not have to disclose the fact that an offer concerning unrelated charges had been made to him when he was called as part of the defense case. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). We find no merit, at least under the circumstances of this case, in Johnson’s argument that because of the prosecution’s offer Crawford had become the “functional equivalent” of a government witness before he was called as a defense witness. The prosecutor, however, may have risked reversal by not making disclosure prior to calling Crawford as part of prosecution’s rebuttal, since Crawford was then unmistakably a witness for the prosecution and subject to impeachment by reference to any offer of leniency. But it does not follow that the failure to disclose the offer until after Crawford’s testimony required a mistrial. Rather, the court acted within its discretion in offering remedial options short of mistrial. See, e.g., Smith v. United States, 363 A.2d 667, 668 (D.C.1976) (continuance). In this case, we do not find that the trial court abused its discretion in denying the motion for mistrial, since the court offered to permit the re-opening of the examination of the witness, and also read a stipulation to the jury adequately conveying the undisclosed material. See Jackson v. United States, 650 A.2d 659, 661 & n. 4 (D.C.1994) (trial court remedy avoided Brady error). Thus, we cannot agree that the government’s failure to make earlier disclosure of its approach to Crawford was “material” because we are satisfied that there was no reasonable probability that, especially in light of the trial court’s post-disclosure actions, the result of the proceeding would have been different, see, e.g., James v. United States, 580 A.2d 636, 644 (D.C.1990), and our confidence in the outcome of the trial is not undermined. See Kyles v. Whitley, — U.S. -, -, 115 S.Ct. 1555, 1565-67, 131 L.Ed.2d 490 (1995).²⁴

V.

Accordingly, the judgment on appeal is

Affirmed.

1 . Drew v. United States, 118 U.S.App. D.C. 11, 331 F.2d 85 (1964).

2 . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

3 . The motion also sought exclusion of evidence of the burglary of the Maryland apartment and related offenses and of illegal possession of a handgun both before and after the murder of Carrington. On appeal, Johnson’s counsel advises us that Johnson still takes that position. Counsel, however, advances no argument concerning the burglary and related offenses. At oral argument counsel concentrated almost entirely on the killings and, accordingly, we do also.

4 . One of the types of other crimes evidence admitted under the identity exception relates to the so-called "signature” crime. In "signature” crime situations, the prosecution must establish that "there are enough points of similarity in the combination of circumstances surrounding the two crimes to create a reasonable probability that the same person committed each.” Groves, supra, 564 A.2d at 376 (internal quotation marks omitted); Artis v. United States, 505 A.2d 52, 56 n. 4 (D.C.), cert. denied, 479 U.S. 964, 107 S.Ct. 464, 93 L.Ed.2d 409 (1986); see Evans v. United States, 392 A.2d 1015, 1020-22 (D.C.1978); Drew, supra, 118 U.S.App. D.C. at 16 & n. 11, 331 F.2d at 90 & n. 11. In this case the government did not attempt to establish a "signature.”

5 . For examples of inadequate proffers, see Campbell v. United States, 450 A.2d 428, 432 n. 7 (D.C.1982), and United States v. Bussey, 139 U.S.App. D.C. 268, 273, 432 F.2d 1330, 1335 (1970).

6 . Cf. Winfield, v. United States, 676 A.2d 1 (D.C.1996) (en banc) (requiring only "reasonable.possibility” of link between proffered evidence of third-party perpetration of a crime and the crime at issue; relying partly on the "roughly reverse situation” of Drew admissibility).

7 . In co-defendant Void’s case, the same motions judge ruled that although the jury could learn about much of what happened in Maryland, including that the same .45 was fired there, it could not be told that the two boys were murdered. The judge reasoned that since the nine millimeter pistol was found on Johnson but not on Void, the evidence connecting Void to the apartment was weaker, a consideration in determining the relative probativity of the other crimes evidence. Void, 631 A.2d at 381-82 & n. 15. Moreover, Void’s defense counsel helped plant the seed of partial exclusion by agreeing to stipulate that the same .45 that allegedly killed Carrington was discharged less than an hour later in Maryland. Thus, while the rulings in Void and in the instant matter may appear inconsistent, they were two different cases presented in two different ways, and the judge’s treating them differently does not indicate abuse of discretion but rather its careful exercise.

8 . On the general topic of the factors to be weighed in concluding whether to admit such evidence, one treatise states:

In deciding whether the danger of unfair prejudice and the like substantially outweighs the incremental probative value, a variety of matters must be considered, including the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility. John Strong, I McCormick on Evidence § 190 (4th ed.1992). (Emphasis added.)

We add that in reviewing this ruling by the trial court, we are not applying the criterion of Federal Rule of Evidence 403, discussed and approved below, that "evidence [otherwise relevant] may be excluded if its probative value, is substantially outweighed by the danger of unfair prejudice,” but are reviewing it under the test the trial court used. As it passes that test, it necessarily passes the test of FRE 403. It is not necessary to discuss whether our approval of the FRE 403 policy discussed below is retroactive, as that issue was not briefed and might never be presented to this court.

9 . At trial and on appeal, Johnson raised objection to the admission of certain other evidence as other crimes evidence. See note 3, supra. As Johnson’s counsel concedes, the admission of evidence of the burglary of the Maryland apartment and the theft committed there was not an abuse of discretion, as it was highly probative of Johnson’s participation in the entire chain of events surrounding Carrington's murder and was not as potentially prejudicial as the evidence of the killing of the boys. The admission of the evidence of Johnson’s possession of the nine millimeter handgun six days after Carrington’s murder was also highly probative. The gun had been stolen from Brown’s apartment during the burglary and that evidence tied Johnson to the burglary. Brown’s testimony that several weeks before Carrington’s murder she had seen Johnson cleaning a handgun that looked like a photograph of a .38 special Smith and Wesson was not as strongly probative because that particular type of weapon was not used in any of the killings. According to expert testimony, however, a .38 short-barrel Colt was one of the weapons that could have been used to shoot Carrington and, to a person not familiar with handguns, it would look similar to the .38 Smith and Wesson. This evidence was sufficiently probative to warrant our deferring to the motions court's decision to admit it.

10 . If evidence is within the Drew rule, the trial court must generally give a limiting instruction, as it did here. See, e.g., Jones v. United States, 477 A.2d 231, 243 (D.C.1984) (trial court has general duty to instruct sua sponte on limited purpose for which other crimes evidence is admitted, but failure to do so is not necessarily reversible error). Conversely, where evidence not within Drew indicates that a defendant engaged in criminal conduct other than the offense charged, as in Lee, supra, an instruction is not always required. Nonetheless, given the possibility that a juror might make improper use of non -Drew evidence indicating such criminal conduct, the trial judge must exercise sound discretion in passing upon a request for a cautionary instruction that would limit the jury's consideration of that evidence to its proper purpose. See Thompson, supra, 546 A.2d at 425-26 (courts assume that well drawn and effectively delivered jury instructions reduce, if not dissipate danger of unfairness and prejudice). Where the other criminal conduct is as serious as that involved in this case, the sound exercise of discretion would almost invariably result in granting a request for an instruction.

11 . We note that the evidence of the Maryland murders bears an immediate relationship to the charged offenses, both temporally and causally, that is especially strong — stronger, for example, than the prior possession of a weapon similar to the murder weapon in (Abdus-Shahid) Ali, supra. This circumstance weighs heavily in the balance against prejudice.

12 . In cases not involving Drew issues this court has said at various times that probative value must outweigh prejudice in order to permit admission, see, e.g., Pittman v. United States, 375 A.2d 16, 19 (D.C.1977), and that the converse was true. See, e.g., Smith v. Executive Club, Ltd., 458 A.2d 32, 40 (D.C.1983); Williamson v. United States, 445 A.2d 975, 981 (D.C.1982). See also the opinions of the D.C. Circuit in United States v. Marcey, 142 U.S.App. D.C. 253, 256, 440 F.2d 281 (1971), and United States v. Kearney, 136 U.S.App. D.C. 328, 332, 420 F.2d 170 (1969).

13 . Federal Rule of Evidence 403 provides in its entirety:

Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

14 . Weinstein’s Evidence, 403: 91-103; Ala.R.Evid. 403; Ariz.R.Evid. 403; Ark.R.Evid. 403; Cal.Evid. Code § 352; Colo.R.Evid. 403; Del.R.Evid. 403; Fla.Stat.Ann. § 90.403; Haw.R.Evid. 403; Idaho R.Evid. 403; Ind.R.Evid. 403; Iowa R.Evid. 403; Ky.R. Evid. 403; La.R.Evid. 403; Md.R. 5-403; Me.R.Evid. 403; Mich.R.Evid. 403; Minn.R.Evid. 403; Miss.R.Evid. 403; Mont.R.Evid. 403; Neb. Rev.Stat. § 27-403; N.H. R. Evid. 403; N.J.R.Evid. 403; N.M.R.Evid. 11-403; Nev.Rev.Stat. §48.035(1); N.C.R.Evid. 403; N.D.R.Evid. 403; Ohio R.Evid. 403; 12 Okl.St.Ann. § 2403; Or. R.Evid. 403; R.I.R.Evid. 403; S.C.R.Evid. 403; S.D.Comp.Laws Ann. § 19-12-3; Tenn.R.Evid. 403; TexR.Crim.Evid. 403; Utah R.Evid. 403; Vt.R.Evid. 403; Wash.R.Evid. 403; W.Va.R.Evid. 403; Wis. StatAnn. § 904.03; and Wyo.R.Evid. 403; see P.R. R. Evid. 19; N.Y.Code Evid. (Proposed 1991) § 403; Mil.R.Evid. 403; see also Unif.R.Evid. 403.

15 . See Commentary to Alaska R.Evid. 403, quoted in Weinstein's Evidence, 403: 96-97.

16 . One commentator has observed that “it is not readily apparent that Alaska’s omission of 'substantially' has had any practical impact.” Evidence in America, supra, § 13.3 at 5; see Andrew Dolan, Rule 403: The Prejudice Rule in Evidence, 49 So.Calí.Rev. 220, 236 (1976).

17 . FRE 404(b) provides in pertinent part:

(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....

The quoted language of FRE 404(b) is consistent with District of Columbia law. We observe that we are not adopting in this case the policy of requiring the prosecutor to give advance notice of intent to use other crimes evidence which was included in FRE 404(b) by amendment in 1991. But we also observe that even without a rule or policy requiring such notice, the trial court has the discretion to require parties to disclose in advance their intention to use evidence of other crimes, and in any event a prosecutor may find it prudent to afford such notice. Such notice may obviate any possible claim of unfair surprise and may avoid a request for continuance. See Ford v. United States, 647 A.2d 1181 (D.C.1994), and separate statement of Farrell, J., id. at 1186.

18 .The Supreme Court held unanimously in Hud-dleston that a trial court need not make a preliminary finding that the government had proved by a preponderance of the evidence or by clear and convincing evidence that the defendant had committed the other bad act or crime in question. Instead, the Supreme Court held that similar acts evidence should be admitted, subject to a probative/prejudicial balancing, "if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act.” Huddleston, supra, 485 U.S. at 685, 108 S.Ct. at 1499. As we have stated, the motions judge in this case found, as a preliminary matter, that the government had established by clear and convincing evidence that the other bad acts had occurred and that Johnson had committed them. Johnson argues on appeal that the record did not support that finding. We disagree.

We do not determine here whether the above-described holding of Huddleston should be followed in this jurisdiction, cf. Daniels v. United States, 613 A.2d 342, 349 (D.C.1992) (concurring opinion), as we agree with the motions judge's finding that the government had satisfied the more demanding clear and convincing standard.

19 . FRE 403 uses the language "may be excluded," but we use "should” in our formulation here in order to inform the trial court’s exercise of discretion in a Drew situation.

20 . Even where other crimes evidence may properly be found to be admissible, we may be called upon to determine whether there was error as a result of its manner of presentation. See 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. The court insisted that defense counsel draft the instruction with specificity, noting, "I don't want to tell that jury something that would harm your client.” Thus, while it can be argued that the instruction should have explicitly told the jury not to use the evidence as proof of propensity, instead of telling the jury that it could use the evidence only on the issue of identity, we cannot say the court erred in instructing in accordance with the request of the defense. See (George) Jones v. United States, 625 A.2d 281, 285 (D.C.1993) (limiting instructions risk emphasizing improper matters, such that defense may not want them). Further, defense counsel asked the court to include the same instruction in its final charge, and the court largely did so.

22 . THE COURT: Let me see the pictures. You [the prosecutor] may not be able to get those in.

[DEFENSE COUNSEL]: Your Honor, I don't think I’m going to challenge that anyway, the testimony of the officers as to where the bullets were found and so on.

THE COURT: You can't challenge that.

[DEFENSE COUNSEL]: No.

THE COURT: There’s nothing to challenge on that.

[DEFENSE COUNSEL]: Right.

THE COURT: But you may be able to challenge these pictures. This is important. The important thing is that [the prosecution] get the testimony in that these are the same shells or the same bullets that were fired from this weapon that killed the deceased in the District of Columbia.

[THE PROSECUTOR]: That’s right. I've set aside a good number of the rest of the pictures that show a lot more of the bodies.

THE COURT: Well, let me see what you got there.

[THE PROSECUTOR]: This is just coming into the bedroom where the boys were. That’s the door coming in.

THE COURT: That's not important to this trial. I don’t think I'm going to allow those photos, but you can certainly bring in the testimony.

23 . The dissent appends a portion of the vacated panel opinion in this case to make its point that the prosecution focussed unduly on the Maryland murders. That excerpt, however, conveys an erroneous impression by selectively quoting a few parts of a record of over 1100 pages. It fails to convey the impression that one cannot help but gain upon reading in their entirety all parts of the record, especially the government’s opening statement and closing arguments, that the government did not call attention to those murders in a disproportionate or inappropriate way. Moreover, by quoting from our opinion in Williams v. United States, 382 A.2d 1, 7 (D.C. 1978), the excerpt may convey the mistaken impression that the trial judge gave a cautionary instruction regarding other crimes evidence only in his "charge in chief” at the end of trial, when in fact he gave such an instruction both during the course of trial and in his final charge.

24 . As to appellant’s argument that the trial court erroneously admitted two co-conspirator statements, we find it to be without merit. See Butler v. United States, 481 A.2d 431 (D.C.1984), cert. denied, 470 U.S. 1029, 105 S.Ct. 1398, 84 L.Ed.2d 786 (1985).