Drake v. United States ( 2024 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-CF-0887
NIKKO L. DRAKE, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(2020-CF3-001170)
(Hon. Maribeth Raffinan, Trial Judge)
(Argued January 4, 2024 Decided May 30, 2024)
Michael Madden for appellant.
Chimnomnso N. Kalu, Assistant United States Attorney, with whom Matthew
M. Graves, United States Attorney, and Chrisellen R. Kolb, John P. Mannarino, and
Paul V. Courtney, Assistant United States Attorneys, were on the brief, for appellee.
Before BECKWITH and SHANKER, Associate Judges, and GLICKMAN, Senior
Judge.
SHANKER, Associate Judge: Following a jury trial, appellant Nikko L. Drake
was convicted of aggravated assault while armed and multiple firearms offenses in
connection with a shooting in 2020 outside of a nightclub in Washington, D.C.
Mr. Drake appeals, arguing that (1) the trial court erred in denying his motion to
2
suppress items, including a cell phone, officers seized when Mr. Drake was in the
emergency room after the incident and (2) the trial court abused its discretion in
admitting at trial text messages and a photograph showing that, four months before
the shooting, Mr. Drake had arranged to purchase a handgun similar to the one used
in the shooting. We disagree on both fronts and affirm Mr. Drake’s convictions.
Background
A. The Shooting
The evidence at trial was as follows. On the evening of January 23, 2020,
Fredirickia Lloyd went with a friend to Mirror Lounge in northwest D.C. Ms. Lloyd
spent some time in the “VIP” section of the lounge with an individual named Kelvin
Harris. At some point, Mr. Harris argued with a man who was described as Black,
about 5’3” tall, with waist-length dreadlocks. Mr. Harris thought that the man was
reaching for a weapon because he could not see the man’s hand for a moment, so
Mr. Harris punched the man. Security then separated the two.
Before leaving through the back door, Mr. Harris told the manager that the
man was carrying a gun. The man was escorted out of the front door, but, because
he had left his glasses inside, he tried to follow security back inside. As the man
attempted to reenter the lounge, James Coleman, the head of security, heard from
3
someone that the man might be armed. The man was offered free drinks in exchange
for consenting to a pat-down search, but he refused and left the club again. The
individual was wearing a camouflage jacket when he left.
A short time later, Ms. Lloyd also left Mirror Lounge through the front door.
She recognized the individual who had fought with Mr. Harris, approached him, and
told him that she did not want to be involved in his quarrel with Mr. Harris. The
man told Ms. Lloyd, “[O]h, you don’t want no smoke.” Ms. Lloyd took the
comment as a threat and the conversation escalated. The man then punched
Ms. Lloyd and she fell to the ground. A security guard known as “Fat Joe” attempted
to separate the man and Ms. Lloyd. During this altercation, Mr. Coleman saw a “dull
black” or “plastic dark gray” gun, warned Fat Joe about it, and told Fat Joe and other
bystanders to go into the club for safety. At 11:25 p.m., two gunshots were fired.
Surveillance footage showed people rushing into Mirror Lounge at that time.
Metropolitan Police Department (“MPD”) Officer Michael Webber was about
one block away responding to an unrelated incident when he heard two gunshots.
Officer Webber immediately searched for victims and found Ms. Lloyd on the
sidewalk suffering from gunshot wounds. A crime scene forensic scientist recovered
a projectile and two nine-millimeter shell casings from the same area.
4
Ms. Lloyd was taken to the hospital, where doctors determined that she had
suffered gunshot wounds to her lower abdomen and back and was in shock due to
blood loss. A trauma surgeon performed an exploratory laparotomy to repair
Ms. Lloyd’s injuries. The surgeon testified that Ms. Lloyd could have died without
the surgery.
Minutes after officers arrived at the scene outside Mirror Lounge, a lookout
describing the shooter as “a black male with long dreads” was broadcast over police
radio. MPD Officer Jermaine Perez spotted an individual who matched the lookout
limping out of an alley around the corner from Mirror Lounge; the man was wearing
a camouflage jacket. Officer Perez did not see anyone else in the area who matched
the lookout. The officer noticed the man because he was limping and, in the officer’s
experience “with calls like this, individuals shooting at each other or possibly
shooting themselves in a shoot-out, they are limping.” Officer Perez followed the
man to the Howard University Hospital emergency room, where the man went into
a bathroom. While the man was in the bathroom, the lookout was updated to include
a camouflage jacket.
B. The Seizure of Mr. Drake’s Items
Additional officers arrived at the hospital and, after the man came out of the
bathroom, handcuffed the man, who identified himself as Mr. Drake. Officer Brian
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O’Shea noticed blood on Mr. Drake’s clothing. The officers decided to take
Mr. Drake to a transport vehicle to continue their investigation. The officers tried to
walk Mr. Drake outside, but he was unable to walk on his own, had to be carried,
and eventually became limp. The officers took Mr. Drake back into the emergency
room, where doctors discovered a gunshot wound in Mr. Drake’s foot.
While Mr. Drake was being treated for his injury, Officer O’Shea returned to
the area of the shooting and looked for surveillance footage. He reviewed footage
from an establishment across the street from Mirror Lounge called Right Spot. The
footage showed a man at the crime scene moments after Ms. Lloyd was shot. Officer
O’Shea was “110 percent” confident that the man in the surveillance footage was
Mr. Drake.
After Officer O’Shea relayed to the officers at the hospital his confidence that
he had seen Mr. Drake on the surveillance footage, officers at the hospital seized
Mr. Drake’s clothing, shoes, and an iPhone from his coat pocket and arrested
Mr. Drake. The government later accessed the contents of Mr. Drake’s iPhone
pursuant to a search warrant.
Police and K-9 units searched Mr. Drake’s flight path for a gun but did not
find one.
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C. The Motion to Suppress
Mr. Drake was charged with multiple offenses related to the shooting. Before
trial, he moved to suppress the items that were seized in the hospital, arguing that
officers unlawfully arrested him without probable cause when they stopped him as
he exited the restroom because (1) they handcuffed him, (2) they commanded him
to stop moving, (3) they asked whether he had a gun, and (4) one officer said over
the radio that police had “one in custody.”
The evidence at the suppression hearing was as follows. Officer O’Shea
testified that around 11:25 p.m. on January 23, 2020, Officer Webber and another
officer were near the 1900 block of 9th Street, NW, when they heard gunshots. The
two officers found a woman on the sidewalk in front of Mirror Lounge who had been
shot. Officer O’Shea, who was patrolling in a police cruiser, arrived about one
minute later. About three minutes after the gunshots, at 11:28 p.m., one of the
officers on the scene broadcast a lookout for “an African American male with dread
locks.” Officer Jermaine Perez, who was patrolling in another police cruiser, saw a
man matching the lookout walking out of an alley one block south and one block
east of Mirror Lounge. The individual was wearing a camouflage “bubble” jacket.
Officer Perez followed the man in his car and, at around 11:36 p.m., the man walked
into the emergency room at Howard University Hospital. At about 11:38 p.m.,
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police broadcast an updated lookout stating that the suspect was wearing a
camouflage bubble jacket. Officer Perez requested backup over the radio.
Officer O’Shea arrived at the hospital at about 11:39 p.m. The individual
Officer Perez had been following came out of a bathroom and police handcuffed him
around 11:41 p.m. The man, who had blood on his clothing, identified himself as
Mr. Drake.
Rather than continuing their investigation from the public emergency room,
police decided to take Mr. Drake to a transport vehicle. As police began escorting
Mr. Drake from the hospital, he became limp. Officer O’Shea also noticed more
blood and began to suspect that Mr. Drake might be injured. Police checked
Mr. Drake for a gunshot wound but did not find one; they then took Mr. Drake back
into the emergency room. Once inside, police learned that Mr. Drake had been shot
in the foot.
Some of the officers remained with Mr. Drake while Officer O’Shea left the
hospital and went back to the 1900 block of 9th Street. There, Officer O’Shea
learned that surveillance footage from Right Spot had captured a portion of the
incident and showed the suspected shooter leaving the scene. After watching the
footage, Officer O’Shea told the officers who were still at the hospital with
Mr. Drake that he was “110 percent” sure that the suspect in the footage was
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Mr. Drake. The officers at the hospital then decided to collect Mr. Drake’s property.
Shortly thereafter, at 12:15 a.m. on January 24, police began seizing Mr. Drake’s
property. Mr. Drake was formally arrested at 12:30 a.m.
The trial court orally denied Mr. Drake’s motion to suppress. The court
concluded that the police had reasonable, articulable suspicion to stop Mr. Drake at
the hospital in light of the fact that, before they stopped Mr. Drake, they were given
a lookout for a Black male with dreadlocks in a camouflage bubble jacket and
Mr. Drake matched that lookout. The trial court also concluded that the officers
lawfully patted Mr. Drake down because they had reason to believe that the person
who had committed the shooting was armed.
The trial court further determined that police had probable cause to
subsequently arrest Mr. Drake because he matched the lookout, police had
surveillance footage implicating Mr. Drake in the shooting, and Mr. Drake had a
gunshot wound to his foot. The court noted that officers did not seize anything from
Mr. Drake until after they had learned about the surveillance footage. The trial court
stated that “it was only after the officers had developed probable cause that the
officers then searched and seized Mr. Drake’s property” and that, given the timing
9
of the search of Mr. Drake’s property, it “would also qualify as a search incident to
arrest.” 1
D. The Trial
In addition to the evidence recounted above relating to the events of January
23-24, at trial the government presented evidence gleaned from Mr. Drake’s items.
The government presented evidence that the iPhone seized from Mr. Drake’s coat
pocket was “somewhere in the general geographic area of 1920 9th Street,
Northwest” between 11:27 p.m. and 11:40 p.m. on the night at issue, and that the
phone had placed or received eight phone calls to or from the same phone number
within that same time frame.
Among the data extracted from the iPhone was a September 16, 2019, text
message exchange in which the iPhone user arranged to purchase a handgun, stating,
among other things, “Tell em I want it,” “I want da 9,” and “Send address.” A
photograph of a black pistol with the word “Taurus” visible on the slide was included
among the text messages. An expert forensic firearms examiner examined the nine-
millimeter casings that were recovered from the crime scene. He also examined the
September 16, 2019, photograph of a black gun. The expert concluded that (1) the
1
The trial court stated that it would issue a “more comprehensive ruling on
the record at a later time,” but it does not appear to have done so.
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two casings had been fired from the same gun, (2) the gun depicted in the photograph
was consistent with a Taurus G2c semiautomatic pistol, and (3) the cartridges could
have been fired by that same type of pistol. He acknowledged that the casings could
also have been fired from several other types of guns.
A DNA expert recovered DNA samples from Mr. Drake’s sweatpants and
sneakers, which had also tested presumptively positive for the presence of blood.
The DNA profile obtained from Mr. Drake’s sweatpants was consistent with a
mixture of two individuals, and the profile was “at least 129 octillion times more
likely to be observed if it originated from Fredirickia Lloyd and Nikko Drake than
if from Nikko Drake and one unknown, unrelated individual.” The DNA profile
from Mr. Drake’s sneakers was consistent with a mixture from two individuals,
including one male contributor. The DNA profile from the sneakers was “at least
45.4 octillion times more likely to be observed if it originated from Fredirickia Lloyd
and one unknown, unrelated individual than if from two, unknown, unrelated
individuals.” 2
The jury found Mr. Drake guilty of (1) aggravated assault while armed, in
violation of D.C. Code §§ 22-401.01, -4502; (2) possession of a firearm during a
2
The defense sought the admission of two exhibits used during
cross-examination of the government’s witnesses, but presented no additional
evidence or testimony.
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crime of violence, in violation D.C. Code § 22-4504(b); (3) unlawful possession of
a firearm (prior conviction), in violation of D.C. Code § 22-4503(a)(1), (b)(1);
(4) possession of an unregistered firearm, in violation of D.C. Code § 7-2502.01(a);
and (5) unlawful possession of ammunition, in violation of D.C. Code
§ 7-2506.01(a)(3). 3 The trial court sentenced Mr. Drake to an aggregate term of 156
months of imprisonment to be followed by five years of supervised release.
This timely appeal followed.
Analysis
Mr. Drake challenges both the denial of his motion to suppress evidence and
the admission at trial of the evidence of his arrangements to purchase a gun four
months before the shooting. We find neither challenge meritorious and affirm
Mr. Drake’s convictions.
A. Denial of Suppression
Mr. Drake asserts that the trial court erred in denying suppression of his
clothing and cell phone, which police officers seized in the hospital. We disagree.
3
The jury acquitted Mr. Drake of assault with intent to kill while armed, one
count of possession of a firearm during a crime of violence, and carrying a dangerous
weapon.
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1. Standard of Review
“When reviewing a trial court’s ruling on a motion to suppress, the facts and
all reasonable inferences therefrom must be viewed in favor of sustaining the trial
court ruling.” Young v. United States, 305 A.3d 402, 432 (D.C. 2023) (internal
quotation marks omitted). “We will not disturb the trial judge’s findings of fact
unless they lack evidentiary support in the record.” In re Z.B., 131 A.3d 351, 353
(D.C. 2016) (brackets, internal quotation marks, and ellipsis omitted). We review
de novo the trial court’s legal determinations, including whether a stop was
supported by reasonable, articulable suspicion. Id.; In re J.F.S., 300 A.3d 748, 755
(D.C. 2023).
2. Discussion
The Fourth Amendment prohibits “unreasonable” searches and seizures. U.S.
Const. amend. IV. Consistent with this guarantee, a police officer may conduct a
brief investigatory stop of an individual if the officer is able to point to “specific and
articulable facts which, taken together with rational inferences from those facts,”
support the conclusion that “criminal activity may be afoot[.]” Terry v. Ohio, 392
U.S. 1, 21, 30 (1968); see Brown v. United States, __ A.3d __, No. 22-CF-0520,
2024 WL 1665328, at *3 (D.C. Apr. 18, 2024). “The requirement of articulable
suspicion is not an onerous one.” Jackson v. United States, 805 A.2d 979, 988-89
13
(D.C. 2002) (internal quotation marks omitted). Rather, the level of suspicion
necessary to support a Terry stop is “considerably less than proof of wrongdoing by
a preponderance of the evidence.” United States v. Sokolow, 490 U.S. 1, 7 (1989).
“A Terry seizure . . . involves a more temporary detention, designed to last
only until a preliminary investigation either generates probable cause or results in
the release of the suspect.” In re M.E.B., 638 A.2d 1123, 1126 (D.C. 1993). “[A]n
arrest,” by contrast, “is effected when the police have made a determination to charge
the suspect with a criminal offense and custody is maintained to permit the arrestee
to be formally charged and brought before the court.” Id. “[W]hen officers subject
a detained suspect to a greater restraint on his liberty than is permissible in a
legitimate Terry seizure, articulable suspicion is not sufficient, and the Constitution
requires a showing of probable cause.” Womack v. United States, 673 A.2d 603, 608
(D.C. 1996).
“The test for judging the existence of probable cause is whether a reasonably
prudent police officer, considering the total circumstances confronting him and
drawing from his experience, would be warranted in the belief that an offense has
been or is being committed.” Ball v. United States, 803 A.2d 971, 974 (D.C. 2002)
(alterations and quotation marks omitted). Probable cause “is a flexible, common-
sense standard that does not demand any showing that the officer’s belief that he has
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witnessed criminal behavior be correct or more likely true than false.” Id. (internal
brackets and quotation marks omitted).
Police officers may also conduct a warrantless search of a person incident to
that person’s arrest. Millet v. United States, 977 A.2d 932, 935-36 (D.C. 2009).
Such a search “may precede the actual arrest if probable cause exists, independent
of the search, to justify the arrest, and if the arrest follows quickly on the heels of
the search.” Id. at 935 (internal quotation marks omitted).
In arguing for suppression of his cell phone and clothing, Mr. Drake focused
below and focuses now on his detention when he exited the restroom at the hospital.
Mr. Drake asserts that that detention was not a brief investigatory stop that would
have required only reasonable, articulable suspicion, see Katz v. District of
Columbia, 285 A.3d 1289, 1302 (D.C. 2022), but “was effectively converted to an
arrest” requiring probable cause because he was handcuffed and transported toward
a police cruiser. The evidence that Mr. Drake sought to suppress was not seized
during this first detention, but the detention’s legality is relevant because, but for it,
Mr. Drake presumably would not have remained in the hospital, leading to his
subsequent arrest and the concomitant seizure of his items. See Brown, 2024 WL
1665328, at *5 (“We cannot simply bypass the legality of the pocket search because
it appears to be a step in the causal chain that led to Brown’s gun being discovered.”).
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We believe, and Mr. Drake does not appear to contest, that the initial stop of
Mr. Drake when he exited the restroom was a proper investigatory detention
supported by reasonable, articulable suspicion. A stop based on an officer’s lookout
description “is ‘not an arrest, but rather a brief detention designed to give the
undercover officer an opportunity to advise the arrest team if they had apprehended
the perpetrators.’” Carpenter v. United States, 144 A.3d 1141, 1148 (D.C. 2016)
(quoting King v. United States, 550 A.2d 348, 357 (D.C. 1988)). By the time of that
stop, police officers had information that Mr. Drake matched the shooter’s
description (a Black male with long dreads wearing a camouflage jacket) and an
officer had seen Mr. Drake walking out of an alley around the corner from Mirror
Lounge within three minutes of the shooting.
We are not persuaded that this initial stop impermissibly morphed into an
arrest. 4 See Brown, 2024 WL 1665328, at *4 (“To pass Fourth Amendment muster,
4
In its oral ruling, the trial court did not explain why it viewed the initial
detention of Mr. Drake as an investigatory stop rather than an arrest, and, as noted,
the court has not entered a more comprehensive ruling. We nonetheless find it
appropriate to decide the issue because (1) the parties’ arguments were before the
trial court, the government specifically argued at the suppression hearing that
handcuffing and transporting Mr. Drake was appropriate, and the court expressly
noted that it had considered all of the pleadings, including Mr. Drake’s motion,
which raised the conversion-to-arrest argument; (2) after having considered the
parties’ positions, the court characterized the initial detention as a “stop”; (3) the
facts have been fully developed; (4) the question has been fully briefed on appeal;
and (5) whether the detention was an investigatory stop or an arrest is an issue of
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a Terry stop and frisk must be justified at its inception and also must remain within
the scope of its justification.”). In light of the violent nature of the suspected offense
and the fact that officers had not yet secured the gun used in the shooting, the officers
did not exceed the scope of a permissible investigatory stop by handcuffing
Mr. Drake. See, e.g., id. (“Officers may handcuff a suspect during a Terry stop if
‘some specific fact or circumstance . . . support[s] a reasonable belief that the use of
handcuffs [i]s necessary.’” (quoting Katz, 285 A.3d at 1303) (alterations in Brown));
id. (handcuffing during a Terry stop permissible when an individual is “suspected of
a violent armed offense and there is reason to believe they are presently armed”);
Pridgen v. United States, 134 A.3d 297, 301 (D.C. 2016) (stop-and-frisk “may entail
the use of handcuffs to restrain the suspect”); White v. United States, 68 A.3d 271,
283 (D.C. 2013) (police may place suspect in handcuffs to ensure their safety during
a Terry stop); Hicks v. United States, 730 A.2d 657, 660-61 (D.C. 1999) (police did
not transform investigative detention of robbery suspect into arrest when they
approached with guns drawn, frisked suspect, and handcuffed him); Womack, 673
A.2d at 609-10 (“[T]he use of handcuffs was justified where, as here, the crime of
law that this court reviews de novo. Cf. Jackson, 805 A.2d at 985 (“Whether a
seizure has occurred for Fourth Amendment purposes is a question of law which this
court reviews de novo, deferring to the trial court’s factual findings, unless clearly
erroneous.”).
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which the defendant was suspected was a violent one and the defendant was reported
to have been armed.”).
Nor did the brief attempt to escort Mr. Drake away from the emergency area
of the hospital convert the investigatory stop into an arrest. See In re M.E.B., 638
A.2d at 1127 (handcuffing and transporting the suspect for about five to ten minutes
for identification procedures was reasonable and “did not convert the custody status
of appellant from a ‘detention for investigation’ to a ‘formal arrest’”); see also In re
I.J., 906 A.2d 249, 260 (D.C. 2006) (“Should the circumstances so dictate, a person
may be seized—stopped, frisked, handcuffed, detained, transported in a police
vehicle to another location (including a police station) and briefly questioned—so as
to allow a Terry investigation on reasonable articulable suspicion without the
encounter being deemed an arrest, within the meaning of the Fourth Amendment,
requiring probable cause.”); Womack, 673 A.2d at 606, 610 (handcuffing and taking
suspect outside of his house to the porch did not convert an investigatory stop into
an arrest).
After this initial investigatory stop, officers took Mr. Drake back to the
emergency room for treatment of his injuries, and shortly thereafter officers seized
the evidence at issue. By that time, the officers had heard that Officer O’Shea was
“110 percent” sure that surveillance footage showed Mr. Drake at the scene of the
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shooting and had learned that Mr. Drake had been shot in his foot. This information,
combined with the information that officers already knew—that Mr. Drake matched
the shooter’s description and an officer had seen Mr. Drake walking out of an alley
around the corner from Mirror Lounge within three minutes of the shooting—
established probable cause to believe that Mr. Drake had committed an offense.
Mr. Drake argues that this information was “at least equally indicative of a victim as
it [was] a perpetrator.” But probable cause does not require that officers’ belief is
“correct or more likely true than false.” Ball, 803 A.2d at 974.
Once officers had probable cause to believe Mr. Drake had committed an
offense, they were permitted to arrest him without a warrant. See Collins v. Virginia,
584 U.S. 586, 595 (2018) (“[I]t is a settled rule that warrantless arrests in public
places are valid.” (internal quotation marks omitted)). And once officers had
probable cause to arrest Mr. Drake, they were permitted to search items incident to
that arrest. See Ford v. United States, 245 A.3d 977, 986 (D.C. 2021) (probable
cause to arrest justifies a search incident to arrest); Ellison v. United States, 238 A.3d
944, 950 (D.C. 2020) (“[A]side from an arrest supported by probable cause, ‘a search
incident to the arrest requires no additional justification.’” (quoting United States v.
Robinson, 414 U.S. 218, 235 (1973)). That is so even if the search of the evidence
19
came slightly before the arrest itself. See United States v. Lewis, 147 A.3d 236,
240-43 (D.C. 2016) (en banc); Millet, 977 A.2d at 935. 5
Accordingly, we find no error in the trial court’s denial of Mr. Drake’s motion
to suppress the evidence seized in the emergency room.
5
“[P]olice may search incident to arrest only the space within an arrestee’s
‘“immediate control,”’ meaning ‘the area from within which he might gain
possession of a weapon or destructible evidence.’” Arizona v. Gant, 556 U.S. 332,
335 (2009) (quoting Chimel v. California, 395 U.S. 752, 763 (1969)) (internal
quotation marks omitted). Mr. Drake does not argue that his belongings in the
hospital room were not within his immediate control or, more generally, that police
officers could not conduct a search incident to arrest if they had probable cause to
arrest him, and so we do not reach the issue. We note, however, that body-worn
camera footage introduced as an exhibit at the suppression hearing shows
Mr. Drake’s belongings piled on the hospital room floor near his gurney. We have
held that police officers permissibly searched a suspect’s jacket incident to arrest
where the jacket was nearby but the suspect was in police control, the suspect was
out of immediate range of the jacket, and the jacket was in the actual but not
exclusive control of the officers. Blackmon v. United States, 835 A.2d 1070,
1075-76 (D.C. 2003). Similarly, we have held that police permissibly seized
incident to arrest a hospital bag containing the suspect’s clothing that was underneath
the suspect’s hospital gurney because the suspect was neither handcuffed nor within
the secure grip of a police officer and could have “reach[ed] the bag with a lunge if
he had wanted to do so.” Holt v. United States, 675 A.2d 474, 481 (D.C. 1996). To
be sure, Blackmon and Holt pre-date Gant, but they post-date Chimel, which
established the rule that Gant applied in the context of vehicles.
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B. Admission of Evidence
Mr. Drake contends that the trial court erred in admitting the text message
evidence indicating that had sought to purchase a gun about four months before the
shooting. We are not persuaded.
1. Standard of Review
“We review a trial court’s evidentiary decisions for abuse of discretion, and
in doing so, broadly defer to the trial court due to its familiarity with the details of
the case and its greater experience in evidentiary matters.” (Markus) Johnson v.
United States, 960 A.2d 281, 294 (D.C. 2008) (internal quotation marks omitted).
“This deference particularly applies where the trial court must consider the relevance
and potential prejudice of the evidence.” Young, 305 A.3d at 434; see (William)
Johnson v. United States, 683 A.2d 1087, 1095 (D.C. 1996) (en banc) (“[W]eighing
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.”).
2. Additional Background
Before trial, the government provided notice of its intent to introduce the
September 2019 text messages and a photograph from Mr. Drake’s cell phone in
which the user of the phone made arrangements to acquire a handgun. The
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government argued that the messages and photograph were evidence of uncharged
criminal conduct but that they were admissible under (William) Johnson, 683 A.2d
1087, because “the firearm Mr. Drake arranged to purchase just four months before
the shooting is consistent with the cartridge casings that were recovered from the
scene of the shooting” and thus the evidence was “direct and substantial proof that
[Mr. Drake] shot Ms. Lloyd with a 9mm firearm on January 23, 2020.” Mr. Drake
opposed admission of the evidence on the ground that it was neither direct and
substantial proof of the charged crime, nor closely intertwined with the evidence of
the charged crime, nor necessary to place the charged crime in an understandable
context. See (William) Johnson, 683 A.2d at 1098. Specifically, Mr. Drake asserted
that the messages did not show that he actually purchased the gun, were not
temporally or causally connected to the shooting, did not add to the context of the
crime, and were more prejudicial than probative.
The trial court noted that the text messages and photograph appeared to be
“just evidence” rather than “other crimes” evidence because Mr. Drake was “simply
having a conversation about the purchase of a gun.” The court observed, however,
that it could proceed by assuming that the evidence was Johnson “other crimes”
evidence. The court ruled that the evidence was “direct and substantial proof of a
crime that on this prior date about four months prior to the shooting, . . . there were
text messages between Mr. Drake and an individual . . . discussing the purchase
22
of . . . a Taurus 9-millimeter semiautomatic firearm,” noting that “on the scene, there
were two 9-millimeter cartridge cases that were recovered.” The court observed that
Mr. Drake’s argument that the messages did not show a completed purchase of a
firearm went to the weight, not the admissibility, of the evidence. The court also
stated that the evidence was probative and not overly prejudicial.
3. Discussion
Under Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964), evidence of “other
crimes” is not admissible to prove general criminal propensity, but other-crimes
evidence can be admitted for another “substantial, legitimate purpose.” Id. at 89-90;
see Bellamy v. United States, 296 A.3d 909, 916 (D.C. 2023), cert. denied, 144 S.
Ct. 368 (2023); Austin v. United States, 292 A.3d 763, 776 (D.C. 2023) (“Evidence
that a defendant has committed another crime is generally inadmissible ‘unless that
evidence can be admitted for some substantial, legitimate purpose.’” (quoting Drew,
331 F.2d at 90)). Such a purpose includes, but is not limited to, proof of (1) motive,
(2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan, and
(5) identity. Drew, 331 F.2d at 90 & n.10; see Bellamy, 296 A.3d at 916. “[I]n order
to be characterized as Drew-type evidence, the acts portrayed must be minimally in
the nature of a criminal offense.” Wheeler v. United States, 470 A.2d 761, 769 (D.C.
1983); see In re Richardson, 273 A.3d 342, 350-51 (D.C. 2022) (applying “Drew’s
23
strictures” to admission of voicemails the defendant had left “because they were
‘minimally in the nature of a criminal offense’ given that they were threatening”).
For Drew-type evidence, the prosecution must “establish, by clear and convincing
evidence, that the other crime occurred and that the defendant committed it.”
(William) Johnson, 683 A.2d at 1093.
In (William) Johnson, we explained that the Drew strictures “do[ ] not apply
where [other-acts] 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.” 683 A.2d at 1098; see id.
at 1090 (Drew “does not apply to evidence of acts, including criminal conduct, that
directly proves the crime charged”); accord Haye v. United States, 67 A.3d 1025,
1031-32 (D.C. 2013). Thus, evidence of uncharged acts is admissible “when
relevant to explain the immediate circumstances surrounding the offense charged.”
Toliver v. United States, 468 A.2d 958, 960 (D.C. 1983). The central inquiry is
whether the “evidence of incidental, uncharged criminal conduct is inextricably
intertwined with evidence of the charged offense.” Id. at 961. “Evidence of the
contemporaneous criminal conduct is not ‘other crimes’ evidence.” Id.“Both Drew and Johnson evidence must ‘be excluded if its probative value is
substantially outweighed by . . . unfair prejudice.’” Bellamy, 296 A.3d at 917
24
(quoting (William) Johnson, 683 A.2d at 1099) (alteration in Bellamy). Thus, “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.” (William) Johnson, 683 A.2d at 1101.
Accordingly, we consider, under abuse-of-discretion review, whether the
text-message evidence was independent of or direct and substantial proof of the
charged offenses, and, if the latter, whether any unfair prejudice to Mr. Drake from
the evidence substantially outweighed its probative value.
We conclude that the trial court was within its discretion in determining that
evidence of Mr. Drake’s efforts four months before the shooting to purchase a gun
of the same type used in the shooting was direct and substantial proof that Mr. Drake
possessed and used a gun on the night of the shooting. Stated in the inverse, evidence
about Mr. Drake’s arrangements to buy a gun was certainly not independent of the
charges that he had a gun of the same type on the night of the shooting. Accordingly,
the government need not have provided a legitimate non-propensity purpose for the
evidence nor have established by clear and convincing evidence that the act occurred
25
and that Mr. Drake committed it. Rather, the only “hurdle” for the evidence was
that its probative value could not be substantially outweighed by the risk of unfair
prejudice. Id. at 1101.
We likewise discern no abuse of discretion in the trial court’s balancing of
probative value against the risk of unfair prejudice. It is true that the messages do
not establish that Mr. Drake in fact purchased a gun. While this in part goes to the
weight of the evidence, not its admissibility, see Stewart v. United States, 881 A.2d
1100, 1111 (D.C. 2005) (“[T]he absence of a definitive link to the crime or the
defendant merely affects the weight of the evidence, not its admissibility.”), it does
speak to the evidence’s probative value. But the text messages showing Mr. Drake’s
specific efforts to obtain a gun were undoubtedly at least somewhat probative of his
later possession and use of a similar gun. Cf. (Carlos) Johnson v. United States, 290
A.3d 500, 515 (D.C. 2023) (social media videos showing the defendant in physical
possession of a similar gun as that involved in the offense “established ‘only a
reasonable probability, and not a certainty,’” that the defendant recently possessed
the gun, “but that was sufficient; the linkage was not conjectural or remote, ‘so the
lack of certainty goes to the weight of the evidence, not its admissibility’” (quoting
Busey v. United States, 747 A.2d 1153, 1165 (D.C. 2000) (emphasis omitted)));
Jones v. United States, 127 A.3d 1173, 1186 (D.C. 2015) (“Given the likelihood that
the gun previously seen in appellant’s possession was of the same distinctive type
26
used in the charged offenses, it was less concerning that the prior sightings may have
occurred several months, or even a year, before the charged offenses.”).
Moreover, in the balancing test, to warrant exclusion, the probative value must
be substantially outweighed by the danger of unfair prejudice. See Ruffin v. United
States, 219 A.3d 997, 1010 (D.C. 2019). That is not the case here. The evidence
“was not inflammatory evidence calculated to appeal to the jury’s emotions and
prejudice the jury against” Mr. Drake. Id. at 1011; see Lewis v. United States, 263
A.3d 1049, 1065 (D.C. 2021) (“‘[U]nfair prejudice’ means an undue tendency to
suggest decision on an improper basis, commonly, though not necessarily, an
emotional one.” (internal quotation marks omitted)).
Accordingly, we conclude that the trial court was within its discretion in
admitting the text messages and photograph as direct and substantial proof of the
charged offenses and determining that they were not substantially more unfairly
prejudicial than probative.
Conclusion
For the foregoing reasons, we affirm the judgment of convictions.
So ordered.