Light v. United States

360 A.2d 479, 1976 D.C. App. LEXIS 338

• Court: District of Columbia Court of Appeals
• Decided: July 23, 1976
• Docket: 9514
• Status: Published

Opinions

MACK, Associate Judge:

Appellant Light, a mail clerk/driver for the Federal Environmental Protection Agency (EPA), was charged in a one count indictment with unauthorized use of a motor vehicle ¹ stemming from his use of a government motor pool car for personal purposes on September 26, 1974. After trial by jury appellant was convicted and sentenced to one year of supervised probation.

This case had its genesis in mid-September 1974 when Robert Sheridan, one of appellant’s co-workers, reported to the EPA car pool attendant that the odometer on the car he had been using registered more mileage in the morning than it had at the close of work the previous day.² Pursuant to this report, a surveillance of the vehicle was undertaken. On the evening of September 25th, the car was reported missing, and at 8:05 the next morning appellant drove it into the EPA car pool. Upon being questioned by a waiting security guard, appellant denied any previous use of the car and said that on this occasion he had done so because his own assigned car had been low on gas. The security unit then contacted the Metropolitan Police Department and appellant was arrested and charged.

On this appeal, appellant assigns as error the trial court’s admission into evidence of testimony and documents referring to at least five occasions, prior to the instant one, wherein the vehicle’s odometer readings registered discrepancies indicating after-hours use. Appellant contends that the use of the five prior instances of car misuse, which have not been adjudicated, nor connected through evidence with him, was unduly prejudicial to his case. We agree.

It is the law of this jurisdiction that evidence of other crimes (whether fully adjudicated as such or not), which are wholly independent of the one charged, is inadmissable unless it comes under one of the well-defined exceptions. Robinson v. United States, D.C.App., 317 A.2d 508, 513 (1974); United States v. Bobbitt, 146 U.S.App.D.C. 224, 450 F.2d 685 (1971); United States v. Bussey, 139 U.S.App.D.C. 268, 432 F.2d 1330 (1970); Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). Even where such evidence might fall within the scope of one of the exceptions, the trial court, in exercising its broad discretion over the admission of evidence, must weigh the probative value of the evidence against the degree of prejudice occasioned by its admission. Robinson v. United States, supra; United States v. Fench, 152 U.S.App.D.C. 325, 470 F.2d 1234 (1972), cert. denied, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973). See also McCormick, Evidence § 190 (2d ed. 1972).

The evidence in this case does not appear to fit into any of the categories in which “other crimes” evidence has been recognized as having independent relevancy. See McCormick, supra. As soon as defense counsel became aware of the government’s intention to produce evidence of prior car misuse, he objected that this would permit the jury to assume there were other crimes, that this would place an unfair burden on the defendant, that there was no evidence connecting the defendant with such misuse, and that the evidence was irrelevant and confusing. The government did not suggest that the evidence would constitute an exception to the rule making other crimes inadmissible, but merely stated that it wished to use the evidence as background material to show how appellant was caught on September 26th. Since appellant’s arrest was not then in issue, this was hardly relevant or necessary.³

Moreover, assuming that the offered evidence was relevant, the government went far beyond “background” in its pursuit of the other crimes relationship. Thus, time and time again the government brought up the subject of the other five instances in which the car’s odometer registered discrepancies. It introduced into evidence the daily utilization reports showing the discrepancies; questioned Mr. Sheridan as to each one; repeatedly questioned appellant as to whether he had driven the car on the other occasions, and argued the other instances to the jury in its closing statement by saying “[i]t’s up to you to decide whether ... it was the beginning of the end . . . for Mr. Light’s unauthorized use of that vehicle when he was finally caught on the 26th.” Allowing such use of the evidence was error.

A full reading of the trial transcript shows not only that the other crimes evidence permeated the trial, but that the prejudicial effect far outweighed the probative value. See United States v. Bussey, supra at 272, 432 F.2d at 1334. The effect of the extensive use of the other crimes was to paint a picture of appellant constantly misusing the government vehicle until he was curtailed by the fruitful surveillance which brought the indictment. Appellant was on trial for one offense and was in no position to defend against other unprosecuted crimes. See Hansford v. United States, 112 U.S.App.D.C. 359, 366, 303 F.2d 219, 226 (1962). There were, moreover, no limiting cautionary instructions given to the jury, in reference to the use to be made of such evidence. It cannot be said “that the error did not influence the jury . . . .” Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946).

Reversed and remanded for a new trial.

1 . D.C.Code 1973, § 22-2204.

2 . It was established at trial that the EPA drivers were required to keep daily utilization reports for each time a vehicle was used. When a driver came to work in the morning he would check the car keys out and make out a report as to how much mileage was on the odometer. At the end of the day before the driver returned the keys, he was again to record the mileage registered on the odometer.

3 . Indeed in view of the fact that appellant’s use of the ear on the 26th was undisputed (the defense being that of authorization) it is difficult to think of any permissible probative value that the evidence of prior car misuses could have contributed. This is particularly true since this evidence was not in any way connected with appellant and since two other drivers testified that they had kept cars overnight on numerous occasions (although denying use for personal reasons).

There is authority that, where the evidence involves an alleged crime not reduced to judgment, there must be “clear and convincing evidence,” adduced in an initial inquiry, that the defendant is connected with the other crimes before the jury should be permitted to hear the evidence. United States v. Bussey, supra at 273, 432 F.2d at 1335 (1970).