Adams v. United States, 82-858.

• Citation: 502 A.2d 1011
• Decision Date: 07 January 1986
• Docket Number: No. 82-858.,No. 82-1153.,82-858.,82-1153.
• Parties: Rufus E. ADAMS, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

502 A.2d 1011

Rufus E. ADAMS, Appellant, v. UNITED STATES, Appellee.

No. 82-858.

No. 82-1153.

District of Columbia Court of Appeals.

Argued December 7, 1984.

Decided January 7, 1986.

COPYRIGHT MATERIAL OMITTED

Mark S. Carlin, Public Defender Service, with whom James Klein, Washington, D.C., was on brief, for appellant.

Maria E. Beardell, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Steven D. Gordon, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before PRYOR, Chief Judge, and NEBEKER and BELSON, Associate Judges.

BELSON, Associate Judge:

Appellant was charged in a six count indictment with first-degree murder (premeditated murder) while armed, D.C. Code §§ 22-2401 (1981), -3202 (1981) (amended 1983), two counts of first-degree murder (felony murder) while armed, id. §§ 22-2401, -3202, armed robbery, id. §§ 22-2901, -3202, and two counts of sodomy, id. § 22-3502, all incident to the death of Alfreda Garner. A jury found appellant guilty on all counts in the "merits" phase of a bifurcated trial. Subsequently, in the "insanity" phase, the same jury returned verdicts of guilty on counts 1 to 5 and not guilty by reason of insanity on count 6, charging sodomy. Appellant was committed to Saint Elizabeth's Hospital and, upon his release, was sentenced to an aggregate term of 45 years to life incarceration. This is a consolidated appeal from the convictions on counts 1 to 5 and from the trial court's order releasing appellant from his hospital commitment. For the reasons discussed herein we remand this case for resentencing; in all other respects we affirm.

I

On October 22, 1980, Metropolitan Police officers were summoned to an apartment building at 704 Third Street, N.W., after residents complained of an odor emanating from the basement area. The police discovered the decaying body of a woman. The body was nude save for stockings and shoes and was lying face down with the arms flexed beneath it, the legs spread, and the hips elevated. Blood was smeared over the back, arms, buttocks and thighs, and had trickled onto the floor. The body bore numerous stab wounds to the chest, arms and hands plus a five-inch horizontal laceration of the neck. A pink pantsuit and a black blouse with a bow were piled next to the decedent's head. No money, no purse and no jewelry, save a ring, were found on or near the body. The clothes later were identified by decedent's friend, Beverly Butler, as the outfit Alfreda Garner had worn on October 16, 1980. Butler was aware that Alfreda Garner had become a prostitute, and that she sometimes used the name "Rita." A fingerprint analyst established that the body was, indeed, that of Alfreda Garner.

Upon investigation of Garner's apartment, the police found a handwritten note bearing the inscription "Kevin" and "call Thursday" followed by a telephone number. The number was established to be an unpublished number listed to appellant at 704 Third Street, N.W., the building in which Garner's body had been discovered. Appellant had assumed the alias, "Kevin."

Detectives from the Metropolitan Police Department obtained a search warrant and went to appellant's apartment. When the detectives arrived appellant consented to the search of the premises. One detective found on a desk a yellow sheet of paper that appeared to be a page from a diary. He inquired of appellant who indicated he was keeping a diary. On request appellant produced three sets of papers, dated and in chronological order, among the last of which was one page dated October 16, 1980. It mentioned that "Rita" had been to his apartment that evening. Nevertheless, appellant denied knowing any young woman named Rita and denied knowing Alfreda Gardner when shown her picture. He later admitted in a written statement that he knew several women named Rita and explained that the Rita mentioned in his diary referred to a Rita Dark.

The detectives seized the several hundred page diary as well as some items recovered from a footlocker near appellant's bed including some pornographic materials, a razorblade, a boxcutter with a retractable razorblade, and a garrotte.¹ Also seized from appellant's footlocker, but excluded by the court, were a pair of women's underpants, a lubricated water nozzle, a curved steel spike blade and additonal pornographic materials.

The medical examiner who performed an autopsy on Garner's body estimated the time of death to be some time before October 19, 1980. The neck wound was consistent with that which could be caused by an ineffectively applied garrotte. That wound, according to the medical examiner, was not lethal; the decedent's heart had still been beating when she was stabbed. The chest wounds probably had been caused by a knife and the hand wounds by a boxcutter or knife. On the basis of various pieces of evidence, the medical examiner deduced that Garner had been wounded in another place, covered with some type of cloth and then moved to the anteroom. The position of the body when found was consistent with anal sodomy having been performed on it, although advanced decomposition precluded testing for medical evidence of such an act. The medical examiner attributed the cause of Garner's death to the cumulation of injuries and ensuing bleeding; he classified her death as a homicide.

II

What the government has referred to as the linchpin of its case against appellant was the voluminous diary recovered from appellant's apartment. The diary comprised a 530-page handwritten detailed chronicle of events occurring in appellant's life from January 26, 1979 to October 26, 1980. Most significant of all were the diary entries for October 16, 1980, the last day on which Garner was seen alive, and for the morning of October 17. These diary entries, which included sunburst symbols denoted by asterisks, read in relevant part:

Thur. Oct. 16, 1980 . . .

Then I ran into Rita/we rap catch a cab to my place/Rita etc/*/I got $50.00/time is 11:30 pm/I start cleaning up/No eyes/but Shorty-Miss Chink — dude next door — Diana and Mrs. Briscoe all heard noises/time now is 1:30 am/I update all reports. . . .

Fri. Oct. 17, 1980

After a lot of effort/I could not out/to bed at 5:15 am/sore/I rubbed down/up at 9:30 am/at 4:33:30 am*/a good session. . . .

Using these two entries, together with considerable circumstantial evidence, the government ultimately was able to establish that appellant had murdered, robbed and twice sodomized Alfreda Garner. To prove its case the government relied on documentary evidence contained elsewhere in the diary as well as on testimonial evidence from a psycholinguistics expert, Dr. Murray Miron, and from lay witnesses including two persons with whom appellant had had intimate relationships, Lynette Vessells and Anthony Williams.

A.

Appellant challenges the admission of diary entries reporting sexual encounters with Williams and Vessells, and their corresponding testimony. Some of the diary entries contained the sumburst symbol which appeared in the above-quoted passages. Both the entries and the testimony referred explicitly to episodes of anal intercourse. Appellant contends that the trial court erred in admitting this evidence under the "unusual sexual preference" exception to the general rule proscribing admission of evidence of other criminal acts, independent of the ones charged, that tends to prove criminal disposition, Calaway v. United States, 408 A.2d 1220, 1227 n. 12 (D.C.-1979).

Appellant argues that the unusual sexual preference exception applies, in this jurisdiction, only to previous sex acts between the same persons, that is, a complainant and the defendant, citing Fairbanks v. United States, 96 U.S.App.D.C. 345, 226 F.2d 251 (1955). We observe, however, that Fairbanks does not support appellant's argument, as the holding there was that evidence of the cited previous behavior was inadmissible because the behavior was not the same as or similar to the charged conduct. More important, and fatal to appellant's argument, is the fact that this court extended the exception to include acts committed with or against persons other than the present complainant or victim. Dyson v. United States, 97 A.2d 135, 137-38 (D.C.1953).

[1] Appellant argues further that the acts described by Williams and Vessells were not "unusual" in the sense in which that word is used in this context. We need not detain ourselves with discussion of that issue, however, for the evidence was clearly admissible on another basis.² The disputed diary entries and the testimony of Anthony Williams and Lynette Vessells were highly relevant to the interpretation of the sunburst symbols appearing in appellant's diary on October 16 and 17, 1980.³ The symbols in those key entries provided the only direct proof of the sodomy charges. The documentary and testimonial evidence regarding appellant's sexual encounters with Anthony Williams and Lynette Vessels established a correspondence between appellant's use of the sunburst symbol in his diary and his acts of anal sodomy. By the same token, the evidence furnished valuable corroboration for Dr. Miron's expert opinion that the sunburst symbol represented anal sodomy wherever the symbol appeared in the diary, including the entries for October 16 and 17.⁴

Moreover, the evidence pertaining to Vessells and Williams was vital to establish that the diary accurately reported the nature and timing of appellant's sexual encounters. The government bore the burden of authenticating the diary, United States v. Sutton, 138 U.S.App.D.C. 208, 212-14, 426 F.2d 1202, 1206-08 (1969); McCORMICK ON EVIDENCE §§ 218, 222, and of adducing substantial independent corroborative evidence of the meaning of the cryptic symbols contained in it, see infra, Part IV. At trial, appellant maintained that the document was not a diary but rather a "manuscript" which reflected "a certain amount of imagination, a certain amount of fancy" and which was "not...