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United States v. Frederick Morton

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Argued February 29, 2012

Before GLICKMAN and THOMPSON, Associate Judges, and STEADMAN, Senior Judge.

This matter is pending in the Superior Court, where defendant Frederick Morton awaits trial on charges of burglary, robbery, kidnapping, and felony murder. In this interlocutory appeal, the government challenges the trial court’s ruling that precludes the prosecutor from introducing at trial evidence of defendant’s longstanding heroin addiction, circumstantial evidence of his drug use on the day the offenses were committed, and defendant’s admission that he committed prior burglaries to support his drug habit. The trial court recognized that defense tactics at trial might “open the door” to some uses of these types of evidence. As a general matter, however, the court excluded the prior-burglary evidence on the ground that it is propensity evidence, the admission of which is prohibited under Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964); and it excluded the drug-addiction evidence on the grounds that it, too, would amount to propensity evidence, that “corroboration cannot be supplied by [defendant's] drug use,” and that, in any event, the drug-addiction evidence would be substantially more prejudicial than probative. The government argues that both categories of evidence are admissible as so-called Toliver*fn1 or Johnson*fn2 evidence, contending that defendant’s heroin addiction and history of committing burglaries to support his drug habit are closely intertwined with the charged offenses and are necessary to place the charged offenses in context and to make their details understandable to the jury. Alternatively, the government contends, the evidence is admissible, under a Drew exception, as evidence that is probative of motive and identity.

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