Jones v. United States

• Decision Date: 31 May 1984
• Docket Number: No. 82-1051.,82-1051.
• Citation: 477 A.2d 231
• Parties: James JONES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 231

477 A.2d 231

James JONES, Appellant, v. UNITED STATES, Appellee.

No. 82-1051.

District of Columbia Court of Appeals.

Argued October 12, 1983.

Decided May 31, 1984.

COPYRIGHT MATERIAL OMITTED

Scott Howe, Public Defender Service, Washington D.C., with whom A. Franklin Burgess, Jr., Public Defender Service, Washington D.C., at the time the brief was filed, was on the brief for appellant.

G. William Currier, Asst. U.S. Atty., Washington D.C., with whom Stanley S. Harris, U.S. Atty., Washington D.C., at the time the brief was filed, Michael W. Farrell and Charles L. Hall, Asst. U.S. Atty., Washington D.C., were on the brief for appellee.

Before PRYOR and ROGERS, Associate Judges, and REILLY, Chief Judge, Retired.

ROGERS, Associate Judge:

Appellant was convicted by a jury of first-degree murder (D.C.Code §§ 22-2401, -3202), assault with a dangerous weapon (D.C.Code § 22-502), and carrying a pistol without a license (felony) (D.C.Code § 22-3204).¹ On appeal he seeks reversal of his convictions on the grounds that: the trial court erred in admitting evidence of appellant's prior gun possession in the months before the killing; the trial court's failure sua sponte to give any cautionary instruction to the jury on the limited use of such evidence and prior threats evidence was plain error; the trial court erred in denying appellant's motion for judgment of acquittal of first-degree murder on the ground of insufficient evidence of premeditation and deliberation; and the prosecutor's rebuttal closing argument contained an improper bad character inference which substantially prejudiced appellant.

In Part I, we summarize the evidence. In Part II we hold that the evidence of appellant's prior gun possession, limited in time and circumstance to a period of several months before the killing in connection with a pattern of his threats to kill the decedent, was relevant to his intent and there was no abuse of discretion by the trial court in allowing its admission. In Part III we hold that the failure of the trial court sua sponte to give any cautionary instruction on the prior gun possession and prior threats evidence was not plain error, where the relevance of the evidence was properly noted by counsel in their closing arguments, its relationship to issues before the jury was not complex or confused, and defense counsel's decision not to request a cautionary instruction was clearly consistent with his trial strategy. We also hold that there was sufficient evidence of premeditation and deliberation, Part IV, and no substantial prejudice to appellant as a result of the prosecutor's rebuttal closing argument, which responded to attacks on a government witness by defense counsel in his closing argument, Part V. Accordingly, we affirm.

I.

The body of Earline Diane Nicks was discovered in the first-floor apartment of appellant and his wife, Gina Mae Jones, at 1246 10th Street, N.W. in the evening on Tuesday, August 19, 1980. Ms. Nicks was appellant's longtime girlfriend,² and occupied a basement apartment at that address. The deputy medical examiner estimated the time of death was between midnight Monday, August 18 and noon Tuesday, August 19, 1980; the cause of death was a single .22 caliber bullet fired from six to twelve inches away. The murder weapon was not recovered.

The government called as witnesses George Reid, a neighbor who witnessed an argument between appellant and Ms. Nicks in the early morning hours of August 19 and heard a shot from the apartment in which she was found, and the family and friends of appellant and Ms. Nicks who testified that appellant had threatened to kill her in the late spring and summer months when appellant was seen with a gun. The evidence of appellant's prior gun possession was admitted for limited purposes over his objection.³ The government's case-in-chief established that the relationship between appellant and Ms. Nicks was violently quarrelsome, and that in the summer of 1980, Ms. Nicks had failed to turn over money owed to appellant, which was the cause of several threats, including, apparently, the one that ultimately resulted in her death.

Ms. Nicks' mother, Lula Nicks, and daughter, Deborah Nicks, testified that two violent arguments occurred while appellant and Ms. Nicks were living with Lula Nicks in 1978 and 1979. During one argument, Lula Nicks had called the police who observed appellant armed with a jackhammer. Deborah Nicks heard appellant threaten her mother with an ashtray, telling her he would "bust her head in;" in another argument, she heard appellant threaten to "blow out her mother's brains." Ms. Nicks' sister, Elaine Harris, also recounted an argument in 1978 between appellant and Ms. Nicks about money when appellant had made a similar threat. She further testified that in July 1980, appellant informed her that Ms. Nicks and his wife had not turned over his money and if he did not get it he would "blow out their brains;" during this conversation, Ms. Harris observed a handgun in appellant's coat. On cross-examination Ms. Harris testified that appellant often threatened Ms. Nicks and often carried a gun, as far back as 1979.⁴

Appellant's next door neighbor, Worth Walker, testified that in the late spring and summer of 1980, he heard several arguments between appellant and Ms. Nicks when appellant threatened to kill her, and he had seen appellant with a gun. On Sunday, August 17, 1980, he observed appellant behind 1246 10th Street pacing back and forth with a gun. On cross-examination, Mr. Walker testified he had seen appellant with a gun numerous (four to five) times.

Ms. Nicks' close friend, Betty Braxton, and son, William Nicks, recounted the argument between appellant and Ms. Nicks on August 17, 1980. Appellant told Ms. Braxton that someone had taken his money and later that day she heard appellant arguing with Ms. Nicks in Ms. Nicks' apartment and threatening to kill her. William Nicks testified that when he arrived at his mother's apartment on August 17, she and appellant were arguing about money and appellant had threatened to kill him and his mother. Ms. Braxton also corroborated earlier testimony that appellant and Ms. Nicks argued and testified, in response to a question about the summer of 1980, that she had often seen appellant with a gun.

The government's key witness was George Reid, who testified he heard appellant shoot Ms. Nicks sometime between 1:00 a.m. and 2:00 a.m. on August 19, 1980. While sitting on his stoop at 1244 10th Street, Mr. Reid saw appellant come out of 1246 10th Street and argue with Ms. Nicks, who was sitting on the stoop of 1246 10th Street. Appellant then re-entered the building and returned with a pistol, which he fired twice into the air, demanding that Ms. Nicks go inside. After they went into 1246 10th Street, Mr. Reid went into 1244 10th Street and listened through a door as the argument continued. He heard appellant knock Ms. Nicks to the floor and threaten her, telling her to get up or he would kill her. A few seconds later a shot was fired, followed by silence. Shortly thereafter Mr. Reid watched appellant remove personal belongings from 1246 10th Street to his car, including a small television and something that could have been a rifle or shotgun, and drive off. Mr. Reid also testified that he had previously heard appellant threaten to kill Ms. Nicks and had occasionally seen appellant going back and forth from his car to his house with a gun. On cross-examination and redirect, Mr. Reid admitted seeing two men who were looking for Ms. Nicks much later that morning and saw them enter the vestibule of her building; he testified, however, that they could not have entered the building past the entrance vestibule because the door leading to the interior of the building was always locked.⁵

The government also called appellant's sister-in-law, Betty Austin, who testified that appellant had telephoned her on the evening of August 19, and told her he had shot and killed Ms. Nicks during an argument, but had not meant to do it.⁶ He also told her he had buried the gun and had others he wanted to bring to her house. The rest of the government's case-in-chief involved events surrounding appellant's arrest on the evening of August 19, after William Nicks saw him in the neighborhood.

Appellant's defense was alibi. He attempted to establish that he was on his way to North Carolina to visit his mother when the murder occurred, and that two men visited Ms. Nicks and killed her after he had left for North Carolina. Appellant did not testify.

Three witnesses recounted the circumstances involving the two alleged killers. Sarah Kelley, who lived at 1244 10th Street, testified that around midnight Ms. Nicks was sitting outside when two men in white tee shirts came by and she went into 1246 10th Street with them. Ms. Kelley then heard arguing, a gunshot, and saw the two men run out of the building.⁷ She also testified that Mr. Reid had been drinking that night and was not on the porch when the two men arrived. George Buie and Delores Lumpkin testified that they were sitting in a car on 10th Street when they saw appellant drive away late in the evening; later they saw two men who were dressed in dark clothes enter the building and heard a gunshot a few minutes later.⁸

The defense also called several witnesses regarding appellant's trip to North Carolina. His foster mother, Ruth Terry, testified that approximately one week before the killing she had asked appellant to come to North Carolina to drive her to a doctor's appointment on August 20, and that on August 19, appellant called to tell her his car had broken down in Virginia.⁹ Appellant's neighbor, Michael Marshall, testified that when he saw appellant at a party on August 18, appellant had said he was going to North Carolina; later that evening, around 10:30 or 11:00 p.m., he saw appellant leave and still later, he heard a sound like a gunshot.¹⁰ A family friend of...