Jones v. United States

RUIZ, Associate Judge,

dissenting:

I cannot agree with the court’s conclusion in Part III of the majority opinion that it was proper for the court to permit the government to introduce evidence of a different crime to the extent that was permitted in this trial. I believe that the trial court abused its discretion in admitting testimonial and visual evidence — detailed and highly prejudicial — of a totally unrelated armed robbery and shooting in North Carolina to prove the identity of the man who committed the charged murder in the District of Columbia through his possession, a month later, of the murder weapon. Because the danger of unfair prejudice posed by the admission of that evidence — in particular, the video of the *1153Check Into Cash armed robbery showing the shooting of a security guard — substantially outweighed its negligible probative value, the court erred in allowing the jury to consider it. I cannot conclude that the error was harmless and, therefore, I believe we should reverse appellant’s convictions and remand for a new trial free of the taint of inadmissible prejudicial evidence of an unrelated, violent crime.

The majority reasons that evidence of the armed robbery and shooting in North Carolina was admissible (1) as an exception to the prohibition against the admission of other crimes evidence, to prove appellant’s identity as the shooter in the District of Columbia by tying him to the weapon used in both crimes; (2) as direct evidence of the murder, to show that appellant had access to the murder weapon; and (3) to corroborate the testimony of appellant’s cellmate, who said that appellant had confessed to the murder in the District and the armed robbery and shooting in North Carolina. For the reasons I discuss, I conclude that the evidence was either not probative on these points or, even if it had some relevance in making those points, the prejudice from the nature and extent of the evidence of the armed robbery and shooting in North Carolina that was presented to the jury substantially outweighed its probative value and cannot be said to have been harmless in the context of this trial.

I. Other Crimes Evidence

“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.” Drew v. United States, 118 U.S.App.D.C. 11, 15, 331 F.2d 85, 89 (1964) (emphasis omitted). “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.” Busey v. United States, 747 A.2d 1153, 1164 (D.C.2000) (quoting Drew, 118 U.S.App.D.C. at 15-16, 331 F.2d at 89-90) (emphasis added); see also Green v. United States, 440 A.2d 1005, 1006 (D.C.1982) (“It is well established that evidence of other crimes is inadmissible except for specified, limited purposes.”); Willcher v. United States, 408 A.2d 67, 75 (D.C.1979) (“[Ujnless the evidence of prior ‘bad acts’ is introduced for a legitimate purpose, its probative value is presumed to be outweighed by the prejudicial effect.”). It is the government’s burden to identify a legitimate purpose for introducing evidence of unrelated crimes. See Johnson v. United States, 683 A.2d 1087, 1101 (D.C.1996) (en banc) (“[Wjhen 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.’ ” (quoting Thompson v. United States, 546 A.2d 414, 424 n. 18 (D.C.1988))). Even if the evidence is offered for a legitimate purpose, the trial court must always weigh the probative value of the evidence against the danger of unfair prejudice, and determine that “its probative value is not substantially outweighed by the danger of unfair prejudice to the defendant.” Id. at 1101 (quoting United States v. Conners, 825 F.2d 1384, 1390 (9th Cir.1987)). We have an “exclusionary” view of other crimes evidence, whereby the government bears the burden of showing that the evidence it seeks to admit falls within a recognized exception to our general prohibition. See Wilson v. United States, 690 A.2d 468, 471 n. 2 (D.C.1997) (citing Thompson, 546 A.2d at 424 n. 18).1

*1154The majority’s analysis, however, begins from the opposite view, suggesting that other crimes evidence is prohibited only where the prosecutor uses such evidence in an improper manner. But that conceptualization misapprehends the reason for our wariness to admit other crimes evidence by shifting the analysis from the impact of the evidence on the jury, where the emphasis properly lies, to the intent of the government in offering the evidence. Cf. Drew, 118 U.S.App.D.C. at 15, 331 F.2d at 89 (“[Ejvidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged.” (emphasis added)). As our cases throughout the years bear out, other crimes evidence may be unfairly prejudicial even where the prosecutor did not intend to use it to show a predisposition to commit a crime. See, e.g., Koonce v. United States, 993 A.2d 544, 556-57 (D.C.2010) (finding evidence of past misdeeds improperly admitted where the government sought to admit evidence not to show predisposition, but simply as a “ ‘starting point’ for eliciting testimony from ... a difficult witness”); Rindgo v. United States, 411 A.2d 373, 377 (D.C.1980) (finding evidence prejudicial where the government sought to “provide relevant background information” about appellant’s relationship with a testifying eyewitness). It is for that reason that in this case there is presumptive prejudice stemming from the admission of evidence of the North Carolina armed robbery and shooting of a security guard. See Busey, 747 A.2d at 1164. As a result, it was the government’s burden to demonstrate that the other crimes evidence it wished to present was not unfairly prejudicial. It did not meet that burden.

Given our lenient test for relevancy,2 some of the evidence of the armed robbery and shooting in North Carolina was relevant to the identification of appellant as the assailant in the murder in the District of Columbia because it tended to establish appellant’s identity because he possessed the murder weapon a month after the murder. Yet, not all relevant evidence is, or should be, admissible at trial. It is left to the trial court to filter what evidence should be permitted for the government to meet its burden and what evidence should be excluded as cumulative, prejudicial, or otherwise unsuitable for the jury’s consideration. Cf. Rodriguez v. United States, 915 A.2d 380, 385 (D.C.2007) (“A trial judge has ‘broad discretion to determine the substance, form, and quantum of evidence which is to be presented to a jury.’ ” (quoting Johnson v. United States, 452 A.2d 959, 960 (D.C.1982))). Here, some evidence related to appellant’s possession of the murder weapon, a month later, which was used in committing a crime in another state, was properly admissible under Drew to show appellant’s identity. However, I believe that the trial court abused its discretion in allowing the government to present cumulative and unneeded — and highly prejudicial — evidence of appellant’s participation in the armed robbery and shooting of the security guard in North Carolina.

In this case there were several colloquies about the purposes for which such evidence could be introduced. During the pre-trial phase, the prosecutor represented *1155to Judge Satterfield that without the evidence of the North Carolina armed robbery and shooting evidence tying appellant to the firearm, “all we have is the testimony of eyewitnesses that place [appellant and his co-perpetrator, Leaks] in the area where the gun was recovered. We don’t have the guns in their hands. And we don’t have forensic evidence, which is incredibly powerful.” The prosecutor also informed the court that the evidence of the North Carolina robbery and shooting would “bolster!] and corroborate!]” the testimony of Hines, who said appellant had confessed to him about both the District and North Carolina crimes. Based on these representations, and sensitive to the prejudice that would result if the jury were informed that a person had been shot, Judge Satterfield stated that he would not allow the victim of the North Carolina shooting to testify, and ruled “that the government would be permitted to establish that a gun was fired ... without establishing though that somebody was shot.”3 He emphasized, however, that his determination could change (presumably, to exclude testimony about the North Carolina crime altogether) depending on whether the parties could agree to a stipulation “that connects those guns to the defendant.”

Contrary to the government’s argument that “we don’t have forensic evidence,” the government did, however, have compelling forensic evidence that “connected” appellant to the gun found in North Carolina, which in turn was matched to the weapon used in the murder in the District: an expert would testify that ballistics testing confirmed that one of the guns used in the North Carolina armed robbery and shooting was the weapon used in the D.C. murder, to the exclusion of any other weapon. Thus the identity of the weapon recovered in North Carolina and the murder weapon used in the District of Columbia was established by forensic evidence. The government then needed to link appellant to the weapon seized in North Carolina. That link was provided by three different pieces of evidence, each of which corroborated the other: (1) Ward, an online friend of appellant with whom appellant and Leaks had stayed in North Carolina, testified that two guns were recovered from the air vent of the room where they had been staying under false names. It was those guns that were test-fired, and one of which (a .45), expert testimony would establish, matched the weapon used in the armed robbery shooting in North Carolina and *1156the murder in D.C. (2) Appellant’s cellmate Hines would testify that appellant told him that he and Leaks had stashed the guns in the vent and asked Hines to go get the guns when he was released from jail because appellant worried that he had forgotten to wipe his fingerprints from the gun. (3) In addition, should evidence of appellant’s participation in the armed robbery be necessary to dispel any question whether appellant knew of the weapons in the air vent of the room where he had been staying, DNA analysis would prove that appellant’s DNA matched a sample taken from one of the nylon masks used during the armed robbery in North Carolina where the gun was used.4

During trial before Judge Dixon, the prosecutor and appellant’s trial counsel (who had not represented appellant at the pre-trial hearings) disagreed on the scope of Judge Satterfield’s ruling. Judge Dixon heard arguments from both parties, including a proffer by the prosecutor of the evidence that he intended to show, and he reviewed the pre-trial hearing transcripts of Judge Satterfield’s discussions. Although in pretrial discussions with Judge Satterfield, defense counsel had resisted admission of any evidence of the North Carolina armed robbery and shooting, at trial new defense counsel acknowledged that the government could present some evidence of the North Carolina crime to link appellant to the weapon in the D.C. murder. Specifically, counsel said that the government “can establish everything about connecting the .45 to [appellant] without either bringing out the fact that somebody was hit by the bullet, or the fact that [appellant] confesses to having shot the security guard. They can get the same effect by simply saying that [appellant] fired the .45 in the store, and they can do that without the statement [i.e., appellant’s confession to shooting the security guard] because they have the bullets and the shell casings.” The prosecutor expressed concern about having witnesses — “who [are] not the most sophisticated” people — “tip-toe” around the shooting of the security guard the defense wanted to redact. Judge Dixon echoed the prosecutor’s concern, stating that “I can’t see trying to sanitize both the North Carolina incident and the jailhouse statement without doing terrific prejudice to the evidence.” He ultimately ruled that the government could present evidence of a “nonfatal” shooting in North Carolina, but without making a definitive determination on how the government could do so.

Judge Satterfield, during pre-trial discussions, and Judge Dixon, during trial, did not delineate what evidence could be presented to satisfy the government’s burden to establish appellant’s identity using evidence of another crime, and what evidence was redundant and unduly prejudicial, in light of Drew’s strictures on the use of such evidence. Although Judge Satter-field had excluded the security guard from testifying, he had suggested — without saying how — that the government could establish that “a gun was fired” during the robbery. Once the case came to trial before Judge Dixon, defense counsel agreed that the government could present evidence to establish that appellant had fired a gun in the North Carolina robbery. But, not only was the government permitted to “establish” that appellant had fired one of the two guns used in the North Carolina robbery (appellant could not be specifically tied to the .45), it also was able to present detailed testimony from the manager of *1157the Check Into Cash store who described the armed robbery and shooting of the security guard, and then repeated it, by introducing and showing to the jury in open court a video of the actual robbery and shooting, narrated by the store manager. Although defense counsel had suggested a less inflammatory means to make the desired connection between appellant and the gun, i.e., by establishing that appellant had fired the gun in the North Carolina robbery and that forensic evidence linked that gun to the murder in D.C., Judge Dixon was more preoccupied with the effect of any sanitization on the government’s unimpeded use of the evidence than on the prejudicial effect that a full presentation of the unsanitized evidence would have on appellant. As a result, the sheer quantum of evidence offered by the government exceeded by far what the government needed to prove identity, and greatly increased the likelihood that the jury would use the evidence against appellant in an improper manner.

The majority and concurring opinions imply that because appellant was not willing to stipulate that he had the murder weapon a month after the murder in North Carolina and had initially wanted to exclude evidence of the armed robbery and shooting in North Carolina from the trial altogether, counsel bears responsibility for the wholesale admission of the other crimes evidence of the armed robbery and shooting in North Carolina. These arguments go too far. First, the government, as the proponent of the other crimes evidence, did not offer a stipulation that would have addressed the specific issue of possession of the murder weapon that it validly needed to establish. Second, regardless of the parties’ positions to gain maximum advantage, and even though counsel’s constructive collaboration can assist the judge in arriving at a proper balance in deciding on the nature and quantum of evidence to be admitted, it remains the trial court’s responsibility to control the admission of evidence and carefully balance its probative value and prejudicial effect. See, e.g., Johnson, 683 A.2d at 1095.

Even if, as Judge Farrell suggests in his concurrence, the absence of such collaboration by counsel could be a factor in our review of the judge’s weighing of the evidence for abuse of discretion, here the record does not support that defense counsel did not provide clear objection and an acceptable alternative to the trial court. Just as two different judges dealt with this issue, one pretrial and another at trial, there also were two different defense counsel, one who handled the pretrial colloquies before Judge Satterfield and a different counsel, who tried the case before Judge Dixon. I agree with the majority that Judge Satterfield’s pretrial ruling was not law of the case binding on Judge Dixon. That means the issue was for Judge Dixon to resolve and that is the ruling that is challenged on appeal. At that time, defense counsel conceded that the government could establish appellant’s subsequent possession of the murder weapon in North Carolina through the testimony of Ward, the expert testimony on ballistics testing that conclusively identified the weapon recovered from appellant’s bedroom in North Carolina as one and the same as the D.C. murder weapon, and the DNA evidence that matched appellant’s DNA to a sample recovered from a piece of cloth used as a mask in the armed robbery. In fact, defense counsel went as far as stating that the government could present evidence that appellant had “fired” the gun. But where counsel clearly drew the line was against admitting evidence that “somebody was hit by the bullet, or the fact that [appellant] confesses to having shot the security guard.” Counsel *1158could not have been clearer as to what evidence of the North Carolina armed robbery should and should not be admitted.

The court should have balanced the government’s legitimate use of the evidence against the defense’s clearly stated concern about its prejudicial impact. In light of the testimony of the firearms experts, who testified with “absolute certainty” that ballistics testing of the .45 recovered in Ward’s house matched bullets recovered from the scenes of the District and North Carolina crimes, to the exclusion of “all other possible firearms,” what was necessary to establish identity was to connect appellant to the gun that was used in the North Carolina shooting. As already noted, the government had ample means at its disposal to this end. Moreover, evidence cannot be considered in isolation; the probative value of particular evidence depends on what other evidence proves the same point. Here, the issue was appellant’s identity as the shooter in the murder in D.C. Evidence of the North Carolina crimes was used to establish indirectly appellant’s identity through his possession of the murder weapon thirty days after the murder. But here, there was direct evidence that appellant had murdered Valentine: Davis, an eyewitness, positively identified appellant in-court and from a photo array, as the shooter. And appellant had confessed to Hines that he murdered Valentine.

I recognize that in light of the government’s high burden of proof, we do not require the government to present its case in such a cramped and disembodied manner that renders its case only sufficient and leaves the jury guessing about the source of the government’s evidence or the weight of its case to prove guilt beyond a reasonable doubt. But the essential duty of the trial judge in a criminal case is to control the throttle of relevant evidence to ensure the fairness of the proceeding. Cf. Caufield v. Stark, 893 A.2d 970, 980 (D.C.2006) (“The determination of what evidence is relevant, and what evidence may tend to confuse the jury, is left to the sound discretion of the trial court.” (quoting Turcios v. United States Servs. Indus., 680 A.2d 1023, 1030 (D.C.1996))). In all cases, the court must weight probative value against prejudice. Johnson, 683 A.2d at 1095 (“[T]he evaluation and weighing of evidence for relevance and potential prejudice is quintessentially a discretionary function of the trial court....”). That responsibility requires particular scrutiny in the case of presumptively prejudicial other crimes evidence. In this case, although some evidence of the North Carolina armed robbery was certainly probative on the issue of identity within the strictures of Drew, the trial court abused its discretion in permitting the government to introduce much more evidence — and highly prejudicial evidence — than was needed to meet its burden.

The evidence that was probative was evidence that, in the words of Judge Sat-terfield, “connected” the guns used in North Carolina to appellant. That “connection” was necessary in order to establish two distinct but interrelated points relevant to the charged crime: appellant’s identity, and the fact that appellant had access to the instrumentality used in the murder, an issue I discuss below. Admission of evidence that appellant used the gun to shoot a security guard did not add any probative weight to either the issue of identity or access to the instrumentality used in the murder in D.C. It served only to show that appellant is a dangerous person prone to engage in violent, unprovoked acts. The fact that appellant used the weapon to shoot a person in an unrelated violent crime, therefore, necessarily substantially outweighed its probative value. In this case, the admission of evidence of *1159another unrelated crime without careful examination of what was probative and what was unduly prejudicial, allowed the Drew exception to swallow the rule.

In addition to determining what evidence is probative, the trial court must also weigh how such evidence should be presented. Judge Satterfield properly determined, over the government’s objection, that testimony by the security guard, the victim of the shooting, would be unnecessarily prejudicial. Instead, Judge Dixon permitted the store manager, an eyewitness, to testify about the armed robbery and the shooting. In addition to her testimony, the government was permitted to introduce the security camera video that recorded the crime, during which the store manager repeated her testimony as she narrated the images seen on the video. The store manager’s testimony about the shooting of the security guard was irrelevant and highly prejudicial; it should have been excluded. The video, a low-quality black-and-white security camera footage, had negligible probative value in establishing appellant’s identity or in tying him to the gun used in the D.C. murder, and because it vividly showed the actual armed robbery and shooting of the security guard, was likely even more prejudicial; it should have been excluded. Although the video does not help the jury identify appellant or the gun used in the robbery, it does unmistakably show that the robbers came into the store with guns blazing and that the security guard was shot without provocation.5 It was not necessary for the jury to strain to make out the actions in the low-quality video because Geil, the store manager, provided a running narrative of the video from the witness stand. She testified that “as soon as [appellant and Leaks] came in the door, they were shooting. And they shot [the security guard] right down.” Geil repeated her account of the robbery as she provided a narrative for the video being shown to the jury, and the video was paused to allow her to explain details of the scene to the jury, including an explanation of where the security guard appears on the screen and how it is that she was able to see what happened to him after he was shot. When asked what had happened to the guard, Geil said he had “survived.”

In short, whatever probative value Geil’s testimony about the shooting of the security guard and the video contributed to tie appellant to the gun that was used both in North Carolina and D.C. was negligible at best because the government had in its quiver other, more substantial evidence that would prove the ultimate issue of the identity of the D.C. shooter. With the DNA match and the unequivocal expert testimony on the ballistics testing, there *1160was simply no need for the jury to view the video of the robbery to try to guess whether appellant was the “shorter, stockier” of the two robbers on the tape, as the government argued was necessary. The video was also unnecessary to establish that appellant was shorter and stockier than Leaks, because the physical differences between the two men were clearly established by eyewitness Davis, who not only described appellant’s build and compared it to Leaks’s (who was Davis’s neighbor), but positively identified appellant from a photo array and in court as the person who shot Valentine in the District of Columbia. Because the other crimes evidence presented a high likelihood that the jury would make an improper inference of criminal propensity without countervailing probative value, the trial court should have carefully examined the legitimate, probative value of the evidence, and then limited the government’s presentation to only probative evidence, excluding, as defense counsel requested, non-probative evidence, of the shooting of the security guard that would unduly prejudice appellant. See Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (“The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.”). In failing to do so, and permitting an unrestricted avalanche of prejudicial evidence of an unrelated crime, the trial judge abused discretion.

II. Direct Evidence of Charged Crime

In addition to being admissible under Drew (subject to proper limitations) to prove identity, some evidence of the North Carolina armed robbery was admissible because it was relevant to the charged murder to establish appellant’s possession of the instrumentality used in committing the crime, in this case, the .45. Here, this ground overlaps with use of the evidence to show identity under Drew, but under our cases it rests on a separate analysis. See Johnson, 683 A.2d at 1098 (“Drew does not apply where such evidence ... is direct and substantial proof of the charged crime.... ”). We have generally required the government to show that the defendant possessed the instrumentality prior to the commission of the crime, or relatively soon thereafter. See, e.g., Thomas v. United States, 978 A.2d 1211, 1240 (D.C.2009) (upholding the admission of evidence that the defendant possessed the firearm four days after the shooting);6 Busey, 747 A.2d at 1165 (“An 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.” (quoting Coleman v. United States, 379 A.2d 710, 712 (D.C.1977))).7 Our rationale for allowing the admission of such evidence lies in the reasonableness of the inference that a defendant who had access to the weapon soon before or after the crime is likely to have had access to it *1161at the time of the crime. See Thomas, 978 A.2d at 1240; Busey, 747 A.2d at 1165. For example, in Busey, the government presented evidence that the defendant had possessed a .38 caliber gun — the same caliber weapon used in the charged crime— two days before the murder. Id. We explained that the “evidence established only a reasonable probability, and not a certainty” that the defendant possessed the gun at the time of the murder, and that the lack of certainty only affected the weight of the evidence, not its admissibility. Id.

Here, expert testimony established that the weapon used in the armed robbery and shooting in North Carolina matched the one used in the murder in the District of Columbia. Even though testimony that the same gun was used both times increased the gun’s probative value, the important inference was that the same person had the gun at both times. The strength of that inference was diminished by the fact that the gun could be linked to appellant only one of those times, at the site of an unrelated crime that took place in a different state, thirty days later. Notwithstanding the time and geographical distance between the two crimes, even if one assumes evidence that appellant had the murder weapon in North Carolina showed a “reasonable probability” that appellant had access to the same gun in the District of Columbia thirty days earlier, Busey, 747 A.2d at 1165, the probative force of that inference was not dependent on showing that appellant had used the gun during the subsequent armed robbery to shoot a security guard. As Busey makes clear, the trial court must carefully weigh the probative value of the evidence against its prejudicial danger, and excise the “inflammatory” and indirect contextual details of the defendant’s prior or subsequent possession of the firearm. Id. at 1165-66. Only if the defense opens the door by challenging the substance of the evidence that the defendant possessed the weapon used in the charged crime at a another proximate time and place may the government present the context of the other possession to “rehabilitate” the evidence’s probative potential. Id. But, here, the court did not restrict in the first instance the government’s evidence to the fact of appellant’s subsequent possession of the murder weapon. Indeed, without any challenge to admission of evidence of appellant’s subsequent possession of the murder weapon (which defense counsel acknowledged was admissible), the court allowed the government to introduce, without limitation, substantial details beyond appellant’s possession of the gun, including the use of the weapon in an armed robbery and shooting of a security guard, through testimony and a video. All of this evidence was allowed during the government’s casein-chief and before the defense had risked “opening the door” to inflammatory contextual details about the armed robbery and shooting. In light of the potential for prejudice to the defendant, the trial court should have better regulated the scope and manner of the evidence of an unrelated crime in light of its specific, legitimate purpose.

As should be clear, evidence of the North Carolina armed robbery and shooting was not admissible under Johnson as direct evidence because it was neither “closely intertwined with” the Valentine murder nor “necessary to place the charged crime in context.” Johnson, 683 A.2d at 1098. In Johnson, evidence of the gruesome murder of two boys in Maryland was admitted in the prosecution for a murder in the District because “[t]he 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 *1162the perpetrators of each were known to the two Maryland victims, and for that reason killed them.” Id. Here, on the other hand, there was no connection established between the District of Columbia murder and the North Carolina armed robbery and shooting, except for the identity of the perpetrators and one of the weapons used. Unlike in Johnson, the two crimes were separated by a month in time and a couple hundred miles in distance, and one did not provide the motive for the other. Cf. id. at 1098 n. 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.... This circumstance weighs heavily in the balance against prejudice.”). The only relevance of the North Carolina armed robbery and shooting to the prosecution’s case in the District murder was to argue that appellant was the assailant here because a month later he had the same gun in North Carolina. With such a tenuous connection between the two crimes, the evidence of the North Carolina armed robbery and shooting is not, as in Johnson, “direct and substantial proof’ of the District murder. See id. at 1095 n. 8 (noting that “a variety of matters” must be assessed in weighing the probative value of other crimes evidence against its prejudicial danger, 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 will rouse the jury to overmastering hostility.” (quoting John Strong, McCormick on Evidence § 190 (4th ed.1992))).

III. Corroboration

Finally, I disagree with the majority’s sua sponte reasoning (the government does not make this argument in its brief) that the entirety of the evidence of the North Carolina armed robbery and shooting was admissible to corroborate Hines’s testimony that appellant had confessed to him about the murder in the District of Columbia. This basis for the majority’s conclusion is that “evidence of other crimes or acts is admissible to corroborate evidence that itself has a legitimate non-propensity purpose.” Ante at 1146 (quoting United States v. Bowie, 344 U.S.App.D.C. 34, 44, 232 F.3d 923, 933 (2000)). Thus, in Bowie, the court permitted other crimes evidence (additional seized counterfeit currency) that was closely linked to the substance of the defendant’s confession for the charged crimes of possession of counterfeit currency. 344 U.S.App.D.C. at 44, 232 F.3d at 933. The D.C. Circuit noted in passing, that “[sjome courts have imposed additional requirements for bad acts evidence introduced for the purpose of corroboration, requiring that the corroboration be direct and the corroborated matter be significant.” Id. at 44 n. 7, 232 F.3d at 933 n. 7 (citing United States v. Everett, 825 F.2d 658, 660 (2d Cir.1987); United States v. Pitts, 6 F.3d 1366, 1370-71 (9th Cir.1993)). The court declined to adopt such a rule, finding that the concerns could be adequately addressed by the balancing test in Federal Rule of Evidence 403. Id. Neither the majority opinion nor the government cites a case in which we have considered the circumstances under which it is appropriate to permit evidence of an unrelated crime to corroborate other properly admissible evidence.8 In my view, the use of other *1163crimes evidence for such a purpose in this case compels the cautionary rule noted in Bowie. Here, the government’s purpose was to corroborate Hines’s testimony that appellant confessed to the District murder (a legitimate purpose), but it sought to do so by corroborating Hines’s testimony about appellant’s confession to the North Carolina armed robbery and shooting, which as an uncharged and unrelated crime was extraneous, and prejudicial, and, therefore, an illegitimate purpose. The majority’s argument seems to be that if Hines’s testimony about appellant’s confession to the North Carolina crimes could be corroborated, then his testimony about appellant’s confession to the murder in the District would likewise be more credible. Evidence of jail confessions offered by a person in a position to benefit from assisting the prosecution is always subject to serious questions and it is understandable that the prosecutor wished to shore it up. Yet, where the corroborative evidence concerns a crime that is distinct in nature, and is not proximate in time or space to the charged offense, careful attention must be paid to the possible misuse of the evidence by the jury. The other crimes evidence that was admitted in this case did not simply “corroborate” the legitimate purposes of Hines’s testimony about the charged murder, as in Bowie, but was used to prove the truth of Hines’s testimony that appellant had committed a different crime, to which he also confessed, and added prejudicial details about an unrelated armed robbery and shooting. As was the case with use of the evidence to establish identity under Drew or to prove that appellant had access to the murder weapon, the quantum of evidence about the crimes in North Carolina was out of proportion to what would have been sufficient to corroborate Hines’s testimony about appellant’s confession, and, therefore, failed FRE 403’s balancing test.

IV. Prejudice

What remains is whether the court’s erroneous admission of unredacted evidence of the armed robbery and shooting was harmless. The government wisely refrains from arguing harmless error in its *1164brief, and that could be the end of the discussion. It should be clear that in light of the sheer volume and detail of the evidence of the violent armed robbery and shooting — made particularly impactful by the video — it is impossible to conclude with any confidence that the jury was not substantially swayed by the evidence of the North Carolina crimes. Notwithstanding the judge’s limiting instructions to the jury, no amount of cautionary proclamations can unring a bell that has been struck as loudly as it was in this case. Moreover, the government’s closing argument went beyond the parameters of the limiting instruction about the proper uses of the other crimes evidence, solely to establish identity and access to the murder weapon. The government’s closing argument began, not as one would have expected, with Davis’s eyewitness testimony positively identifying appellant as the man who shot Valentine. Instead, the prosecutor referred to appellant as the “mystery man” Davis saw with Leaks during the murder and then described appellant’s “partnership” with Leaks in fleeing (with false names) to North Carolina, where they together committed the armed robbery, and again together, escaped from D.C. jail the following year. Only then did the prosecutor mention Davis’s positive identifications of appellant as the shooter. In closing argument, the prosecutor twice referred to the armed robbery and also mentioned the shooting of the security guard in North Carolina. In rebuttal, the prosecutor responded to defense counsel’s closing argument that “nobody s[aw]” appellant with a gun when Valentine was shot in the District, by directing the jury’s attention to the crime in North Carolina: “Ed Davis saw him with a gun. Do you want to see him with a gun? Watch the video from the Check Into Cash.” As already discussed, the video in no way assisted the jury in establishing that appellant had the gun used in the District of Columbia murder the previous month, a fact that was established by expert testimony on ballistics and DNA testing, independent of the video. By pointing the jury’s attention to the video, the prosecutor highlighted that appellant had committed an armed robbery at another time and place during which he and his same companion in Valentine’s murder had terrorized store employees and shot a guard without provocation. By emphasizing the video, the prosecutor’s rebuttal crossed the line, arguing that appellant’s use of a weapon to commit a violent crime in North Carolina proved that he also used a gun to murder Valentine in the District.

The prejudicial impact of the unregulated admission of evidence of an unrelated crime, particularly when viewed in the context of the expert’s exaggerated “one-hundred percent” certainty about the ballistics testing and the prosecutor’s closing argument and rebuttal, leads me to conclude that the improperly admitted evidence could well have substantially swayed the jury’s verdict. I would reverse and remand for a new trial that properly limited both the evidence of the unrelated crimes in North Carolina and the degree of certainty expressed by the ballistics experts.

. Contrarily, federal courts have interpreted Federal Rule of Evidence 404(b) — which is a *1154codification similar to our general prohibition on other crimes evidence — as "a rule of inclusion rather than exclusion.” United States v. Bowie, 344 U.S.App.D.C. 34, 40, 232 F.3d 923, 929 (2000).

. "Relevant evidence is simply ‘that which tends to make the existence or nonexistence of a [contested] fact more or less probable’ than it would be without the evidence.” Busey, 747 A.2d at 1165 (quoting Punch v. United States, 377 A.2d 1353, 1358 (D.C.1977)).

. Judge Satterfield emphatically expressed his views about what he considered undue prejudice in light of the evidence available to the government to prove appellant’s identity:

THE COURT: Well, why can’t you prove it without getting into the actual details of the robbery shooting?
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You want to put the guns at that scene of the — those particular guns at — with the defendants at that scene through DNA evidence on clothing, plus ballistic evidence from the scene. You want to do it by bringing in somebody who is going to testify that they shot him. And then I have to tell the jury, you know, you heard that they shot him. But, you know, never mind, don't think of that as a pattern of any conduct by them or to prove that they actually shot somebody up here, even though you've already heard that they shot that other man down there, because as the judge is going to tell you, you can only consider it for identity-
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And then you want to bring it in through this witness who says he was shot. And I’m asking the government, and answer my question, why can’t you sanitize it to the point of just saying that it was some kind of scene down there where they recovered these items of a robbery and then without having to do it through having a witness come in and say that he was shot with a gun in the chest?

. The store manager testified that both robbers were masked. DNA from a brown knit cap matched the DNA of Leaks. The knit cap matched to Leaks’s DNA and the nylon cloth linked to appellant’s DNA were recovered behind the store immediately after the robbery.

. Contrary to the majority opinion’s characterization, the video is virtually worthless in identifying appellant as one of the perpetrators. Both robbers were masked; according to the store manager, they were covered from "head to toe.” Moreover, the camera’s perspective is such that it is virtually impossible to tell which one is the "stockier, shorter” one (presumably appellant), and, because the video is black-and-white, it is difficult to tell which of the robbers wore the "light blue” shirt the store manager said the shorter man wore. It is impossible to identify the weapons in the robbers’ hands. What the video clearly shows is the security guard being shot. As the video starts, about two-thirds of the guard’s body is visible in the lower-right portion of the screen; the guard then leans into the frame and his head is fully in view; as the robbers enter the store, a flash of light is seen coming from the gun of one of the robbers in the direction of the security guard, and the guard falls from the frame; there ensues a chaotic scene in which the robbers quickly collect the money, after which store employees are seen going to the place where the guard fell; finally, when an officer arrives on scene, he goes directly to the spot where the guard fell.

. See also Millard v. United States, 967 A.2d 155, 165 (D.C.2009) (hypothesizing that if “police had discovered extra ammunition or a gun holster in appellant's home on February 10, 2005, the government could be expected to argue — with justification — that such evidence makes it likely that appellant had access to a gun and 'more probable’ that he possessed one on February 9, 2005, the day of his arrest").

. See also Jackson v. United States, 623 A.2d 571, 587 (D.C.1993) ("An accused’s prior possession of the physical means of committing a crime is admissible.”); Marshall v. United States, 623 A.2d 551, 554 (D.C.1992) (finding no error in the admission of evidence that the defendant possessed the firearm used in the murder two months before the killing).

. Minick v. United States, 506 A.2d 1115 (D.C.1986), relied upon by the majority, is inappo-site because it did not involve the admission of extraneous evidence of another crime to corroborate properly admitted evidence. In Minick, a wallet with parole papers in the *1163defendant's name was found "within approximately one hour of the estimated time of the victim's rape and murder ... approximately twenty five feet” from the body of the victim. Id. at 1118. Appellant had argued that his wallet had been lost "for several days” before the crime was committed. Id. The question for the court was whether the parole documents could be introduced to establish the defendant’s identity as the perpetrator — there was no witness to the crime — including through the testimony of two witnesses who saw the defendant with the parole papers found in the wallet "a few hours before” the crime. Id. The parole papers, in short, were evidence found at the crime scene and were shown to witnesses who identified them as the same papers the defendant had in his wallet just before the crime. Even though the papers were direct evidence of the charged crime, the court analyzed their admissibility as other crimes evidence. The court concluded they were admissible because the govemment did not have "ample other evidence establishing the identity of the assailant” making them "highly probative evidence of a material fact in issue,” id. at 1119, and potential prejudice was "diminished” as the papers “did not contain any reference to the [other] crime the defendant had committed,” id. at 1120. The differences with this case are obvious; here, the government had ample other evidence identifying appellant as the shooter in the District, evidence about the North Carolina crimes was extraneous to the murder in the District, and a great amount of detail about the North Carolina crimes was admitted.

The majority opinion also cites Strozier v. United States, 991 A.2d 778 (D.C.2010). Stro-zier also is inapposite as it did not involve evidence of an unrelated crime. The issue in Strozier was the admissibility of an autopsy photograph of the victim of the charged crime, to address an issue that the defendant had contested. Id. at 794.