Clark v. United States, 12970.

• Decision Date: 25 February 1980
• Docket Number: No. 12970.,12970.
• Citation: 412 A.2d 21
• Parties: David CLARK, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

412 A.2d 21

David CLARK, Appellant, v. UNITED STATES, Appellee.

No. 12970.

District of Columbia Court of Appeals.

Argued April 10, 1979.

Decided February 25, 1980.

Constance T. O'Bryant, Public Defender Service, Washington, D. C., with whom Silas J. Wasserstrom, Public Defender Service, Washington, D. C., was on brief, for appellant.

William E. Bucknam, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the brief was filed and the case was argued, John A. Terry, Michael W. Farrell, and John McDougall Kern, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before NEWMAN, Chief Judge, and KELLY and FERREN, Associate Judges.

NEWMAN, Chief Judge:

Following a jury trial appellant was convicted of first-degree murder while armed, D.C.Code 1973, §§ 22-2401, 22-3202. On this appeal, appellant presents two issues for our consideration. Appellant contends that the trial court, over his objection, erroneously admitted into evidence under the state-of-mind exception to the hearsay rule, certain hearsay statements of the deceased that tended to show: (1) the conduct, attitude, and feelings of the accused and the deceased toward each other, and (2) that the declarant intended to go to Federal City College on the morning of her death; that she intended to meet the appellant when she got there; and that this made it more probable that she did in fact go and meet the appellant there.

In Part I of this opinion we set forth the pertinent facts and trial proceedings. In Part II, we discuss the state-of-mind exception to the hearsay rule. In Part III, we analyze appellant's two specific contentions and conclude that the admission of the challenged testimony under the state-of-mind exception, when the declarant's own state of mind was not in issue at trial, was error. Finally, in Part IV we summarize our findings and conclusions. We reverse and remand for a new trial.¹

At trial, evidence was presented that at approximately 8:45 a. m. on March 10, 1976, Tawana Thomas was accosted by a man in front of the then Federal City College. The man dragged her a short distance to a white Mercury Cougar that was parked nearby, where he threw her onto the front seat and shot her three times, killing her. The gunman then left the car and fled down a nearby alley. When detectives of the Metropolitan Police Department arrived at the scene, they found the victim lying in the white Cougar. On the ground beside the driver's side of the car was a torn driver's license in the name of Jeffrey Head.

A check with the Department of Motor Vehicles revealed that the Cougar was registered to Mrs. Rose Head, the mother of Jeffrey. Homicide detectives immediately went to the home of Jeffrey Head, placed him in custody, and transported him to police headquarters for questioning. Mr. Head denied any involvement in the shooting and told detectives that appellant had borrowed the Cougar the day before. Upon learning that the police were looking for him in connection with the shooting, appellant presented himself to the Homicide Squad and was placed under arrest. He was subsequently indicted for the murder of Tawana Thomas.

At trial, one of the principal government witnesses was Ms. Joyce Drumming, a professor at the college at the time of the shooting. She testified that on the morning of the murder she had approached the side of the college building at 2nd and E Streets, N.W., and heard a woman screaming. She looked across the street and saw a man and a woman struggling. She crossed the street to assist the woman and twice was able to see clearly the face of the assailant, each time for approximately two or three seconds. She subsequently described the man to the Assistant United States Attorney and to the grand jury as having very large eyes, a clean-shaven face, and "that very clean Muslim look." (Tr. 26) At the trial Ms. Drumming made an in-court identification of appellant as the assailant.²

There was undisputed evidence that appellant and the decedent had a 5-year-old daughter and had lived together until approximately 11 months before the shooting. It was the government's theory that the murder of Tawana Thomas was the culmination of what had been a stormy relationship between the decedent and appellant. Through a series of witnesses who related hearsay statements that had purportedly been made by the decedent, the government introduced evidence of a number of assaults, threats, and hostile acts which allegedly had been directed toward Ms. Thomas by the appellant. The court permitted the statements to be admitted under the state-of-mind exception to the hearsay rule, ostensibly for the purpose of demonstrating the attitude, conduct and feelings of the accused and deceased toward each other.

Irving Thomas, the father of the decedent, testified that the decedent had told him that in August 1975, appellant had tried to kick open the door of the family apartment in an attempt to see her, but had broken into the downstairs apartment of Algie Smith by mistake.³ Mr. Thomas also testified that the decedent had told him that appellant had approached her one morning in late 1975, and had pulled out a gun threatening to kill her. According to this account, only the fortuitous passing of a police car had caused the appellant to desist.

Pamela Jackson, appellant's aunt, similarly related conversations she had with decedent in which Tawana had related to her details of both the "gun" incident of late 1975 and the incident of August 1975 when appellant had broken into Algie Smith's apartment. Furthermore, both Mr. Thomas and Ms. Jackson testified to conversations they had had with decedent in which Tswana had informed them that appellant had called her and kept pressuring her to go back with him. Charles Lockhart, appellant's probation officer, testified that Tawana had told him that appellant was harassing her and pressuring her to go back with him.

Murad Akbar, a government witness, stated that he and the decedent had once been engaged to be married, but that the decedent had broken off the engagement, stating that appellant was aggravating her by pressuring her to return to him.

William Brown, decedent's boyfriend at the time of her death, testified that on the evening of March 9, 1976, the decedent received a telephone call from an unidentified person. After hanging up, the decedent told him that David Clark, the appellant, had been the caller and had requested to see her the next morning at Federal City College. According to Mr. Brown, the decedent had concluded by telling him that she would decide overnight whether to go and meet the appellant. She also indicated that in any event she did expect to attend her regular classes at the college.

Appellant objected to the hearsay testimony as it was offered, but the trial court overruled each objection. Instead, after each witness testified to a hearsay statement, the court gave the following cautionary instruction to the jury:

THE COURT: Ladies and Gentlemen, the Court is going to give you a cautionary instruction. A witness has testified to conversations he had with the deceased. That testimony is hearsay. It is not admissible for the truth of the statement made by the deceased, and you should accord no weight on the question of whether or not the incidents described by the deceased actually occurred. It is admissible only to show the state of mind of the deceased as evidence of the conduct, attitude, and feelings of the accused and the deceased toward each other.

Appellant presented an alibi defense. He testified that on March 9, 1976, he went to see Jeffrey Head to borrow his car. According to appellant, Head told him to keep the car until later that day and then to park it in a nearby circle. Appellant testified that that evening he used the car to meet his girlfriend, Kathleen West, at her grandmother's house. They drove to a nearby drug store and then returned to the house of Ms. West's grandmother. While Ms. West waited, he went to park the car at the designated circle and then walked back to meet her. He stated that he and Ms. West then caught a cab to Ms. West's home in Southeast, where they spent the night. Appellant claimed he did not leave Ms. West's home until 9:30 or 10:00 a. m. the next morning, March 10, 1976. Ms. West's testimony at trial conformed with appellant's recitation of the sequence of events during the hours in question.

Following the close of all the evidence, the jury returned a verdict of guilty on a charge of first-degree murder while armed. This appeal followed.

II

"[T]he state of mind exception to the hearsay rule allows the admission of extra-judicial statements to show the state of mind of the declarant . . . if that is at issue in the case." Rink v. United States, D.C.App., 388 A.2d 52, 57 (1978), quoting United States v. Brown, 160 U.S. App.D.C. 190, 194, 490 F.2d 758, 762 (1973) (as amended in 1974). See Campbell v. United States, D.C.App., 391 A.2d 283, 287 (1978); Fed.R.Evid. 803(3). Several types of statements are admissible under the state-of-mind exception to the hearsay rule due to their presumed reliability and probative value.

The first type of statement directly conveys the declarant's then-existing emotional state, e. g., "I am afraid of X." When related by a witness other than the declarant, this statement is clearly hearsay because the witness is testifying to an out-of-court statement of the declarant which only possesses evidentiary value if the jury accepts it for its truth. See United States v. Brown, supra, 160 U.S.App.D.C. at 195, 490 F.2d at 763. However, because such a statement contains sufficient indicia of reliability, it is generally admissible under the state-of-mind exception in cases where the declarant's state of mind is at issue. See Bennett v. United States, D.C.App., 375 A.2d 499, 503 (1977). It is important to note that this type of statement carries...