Wilson v. United States

690 A.2d 468, 1997 D.C. App. LEXIS 15, 1997 WL 50546

• Court: District of Columbia Court of Appeals
• Decided: January 30, 1997
• Docket: 94-CF-628
• Status: Published

Opinions

Opinion for the court PER CURIAM.

Concurring opinion by Associate Judge RUIZ at 470.

PER CURIAM:

On this appeal from his conviction for first degree (premeditated) murder, Wilson contends primarily that the trial court erred in admitting evidence of threats he had made to kill the victim, without affording him the protections of Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964), pertaining to “other crimes” evidence. As we conclude that the threats were direct evidence of the crime charged and not subject to analysis under Drew, we reject appellant’s argument,¹ and affirm.

I.

The government’s evidence showed that Wilson took a car he often drove to be repaired by a local mechanic. The repairs took place in an alley. While Wilson was away, someone threw a jack handle through a window of the car. When Wilson returned, he was told that the decedent, Powell, to whom Wilson owed a small debt, had done it. One witness testified that Wilson said that he would “bust” Powell; another testified that Wilson said, “I’m going to kill” Powell, repeating the threat “four or five times.”

Wilson made the threats on Wednesday evening. Powell was killed the following Friday night. A man dressed in clothes similar to those worn by Wilson around that time was seen to flee from the scene of the killing in a car similar to one owned by a friend of Wilson’s. As he lay dying, police asked Powell who shot him. He responded, “June,” and gave a brief description of his attacker’s attire and the weapon he used. Wilson’s nickname is “June.” Conducting a search of the scene, police found among the debris on the sidewalk a paper bag with Wilson’s fingerprint on it. Wilson testified on his own behalf and presented an alibi defense, which the government largely impeached.

At trial, Wilson objected that the threat evidence was inadmissible “other crimes” evidence. The government countered that the evidence should not be analyzed under Drew but under Toliver v. United States, 468 A.2d 958 (D.C.1983). The trial court did not determine whether the proffered evidence of Wilson’s threat against Powell was admissible under Drew or Toliver. Assuming it was Drew evidence, however, the trial court ruled that the government had made the required proffer that the evidence was relevant to show motive, intent and premeditation and that Drew’s requirements were satisfied.

Testimony adduced at trial revealed that during the grand jury proceedings, the government had learned that Powell knew two other persons nicknamed “June” (or “June Bug”). The prosecution asserted that it had not disclosed that fact because its own investigation had shown that the two other “Junes” had good alibis. Indeed, both individuals had testified before the grand jury. The trial court ordered the grand jury testimony of these persons to be produced to the defense, and found that the government should have disclosed earlier its information concerning the existence of the two Junes. Consequently, the court granted defense counsel a five-day continuance to investigate the matter. It also permitted the defense to recall any witness and to interview witnesses in the courtroom. The defense then called and examined both witnesses nicknamed “June” as to their alibis.

II.

Wilson contends that the evidence of his threat to kill Powell should not have been admitted without the protections which Drew v. United States, swpra, requires in the case of “other crimes” evidence. Specifically, he contends that the government should have been required to disclose the evidence of the threats in advance of trial,² the court should have held an in limine hearing to determine whether the fact of the threats had been shown by clear and convincing evidence, and the court should have instructed the jury at trial concerning the limited use of such evidence of other crimes.

We conclude, to the contrary, that the threats were not evidence of the kind governed by Drew and to which the special protections for “other crimes” evidence apply. Wilson’s threats to kill Powell, made less than three days before the slaying, were direct evidence of the crime charged within the meaning of our decisions, chiefly our recent decision for the entire court in Johnson v. United States, 683 A.2d 1087 (D.C.1996) (en banc).

“[I]t has never been doubted that the threats of an accused person are admissible to show his doing of the deed threatened.” 6 WigmoRE, EVIDENCE § 1732, at 157 (Chad-bourn rev. 1976). Evidence of a relatively contemporaneous threat to do the charged act is perhaps the prototypical instance of evidence not “subject to Drew strictures” because it “is not independent of the crime charged” and so is “admissible as direct proof of guilt.” Johnson, 683 A.2d at 1096. As we pointed out in Johnson, evidence of a defendant’s threat to a witness in the case has not been treated as other crimes evidence but rather as “an admission, directly relevant to guilt.” Id. at 1097 (quoting Smith v. United States, 312 A.2d 781, 785 (D.C.1973)). A threat made to the victim to do the very act charged should be treated no differently.³

Of course, “whenever” — and not simply in the Drew context — “relevant evidence poses a danger of unfair prejudice,” the trial court “must weigh the apparent probative value of the evidence against the unfairly prejudicial effect that it is likely to have.” Id. at 1098. But the risk of unfair prejudice to Wilson from the threats was minimal, while the probative value of the evidence was exceptionally high, see WigmoRE, supra, as the trial court implicitly found. Beyond that, Wilson was not entitled to have the threats evidence singled out for any special protection or instruction of the sort our other crimes law imposes.⁴

Finally, although the threats were not Drew evidence, nothing in our decision prevents individual trial judges from including such conduct within the scope of “other acts” evidence which they require to be disclosed beforehand in order to minimize the possibility of surprise. See Johnson, 683 A.2d at 1100 n. 17.

III.

Wilson contends that had he known earlier of the potentially exculpatory evidence produced at trial concerning the existence of other acquaintances of the decedent nicknamed “June,” he would have refrained from testifying (and thereby would have avoided being impeached) and would not have called a police officer as a witness to testify about the number of “Junes” in the city. The government argues that the evidence was disclosed in sufficient time to be used by the defense effectively at trial, particularly in light of the production of the relevant grand jury transcripts, the trial court’s grant of a five-day continuance, its permitting Wilson to recall witnesses, and its offer to allow Wilson to interview witnesses in the courtroom.

We review for abuse of discretion. Edelen v. United States, 627 A.2d 968, 972 (D.C.1993). In view of the ample opportunity the trial court afforded to the defense to investigate and to present additional evidence, and the consistency of the newly-disclosed evidence with the theory of the defense, it cannot be said that the trial court abused its discretion.

Affirmed.

1 . We further reject appellant's claim of prejudice with respect to the belated disclosure of certain exculpatory evidence. See part III, infra.

2 . But see Lewis v. United States, 567 A.2d 1326, 1329 (D.C.1989) (footnote omitted) ("[T]here exists no specific rule [in this jurisdiction] mandating that the government provide advance notice of its intention to introduce Drew evidence”).

3 . At the same time, we reject the government's effort to squeeze the threats evidence here into the narrow category of “Toliver” evidence, for which we have required much closer temporal and spatial proximity than shown here. See, e.g., Parker v. United States, 586 A.2d 720, 724 (D.C.1991).

4 . In an individual case concerning even “non- ■ Drew evidence," the trial court may be required to "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.” Johnson, 683 A.2d at 1097 n. 10. But appellant made no such request here, and it is difficult to imagine the form such an instruction might have taken: the evidence was admissible precisely as proof that because Wilson threatened to kill Powell, he did so in fact — or at least that, having threatened the murder, it was more probable that he did the slaying than if he had made no such threat.