Jones v. US, 90-CF-947

• Decision Date: 13 May 1993
• Docket Number: 90-CF-983.,No. 90-CF-947,90-CF-947
• Citation: 625 A.2d 281
• Parties: George Marshall JONES, Appellant, v. UNITED STATES, Appellee. James E. BUTLER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

625 A.2d 281

George Marshall JONES, Appellant, v. UNITED STATES, Appellee.

James E. BUTLER, Appellant, v. UNITED STATES, Appellee.

Nos. 90-CF-947, 90-CF-983.

District of Columbia Court of Appeals.

Argued April 14, 1992.

Decided May 13, 1993.

William G. Dansie, appointed by this court, for appellant Jones.

Shirlimarie McAroy-Gray, Public Defender Service, with whom James Klein and Page Kennedy, Public Defender Service, were on the brief, for appellant Butler.

Albert A. Herring, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher, Thomas C. Black and N. Paul Patterson, Asst. U.S. Attys., were on the brief, for appellee.

Before ROGERS, Chief Judge, and TERRY and SULLIVAN, Associate Judges.

SULLIVAN, Associate Judge:

Appellants, James E. Butler and George Marshall Jones, were each charged in indictments with assault with intent to kill while armed in violation of D.C.Code §§ 22-501, -3202 (1989). A jury convicted Butler of the indicted offense and convicted Jones of the lesser-included offense of assault with a dangerous weapon in violation of D.C.Code § 22-502 (1989). In these consolidated appeals, appellants raise two principal issues. First, we consider whether the trial court abused its discretion by admitting excessive evidence and allowing argument by government counsel concerning the nature of appellants' homosexual relationship with each other and appellant Butler's effeminate characteristics. We also consider whether the evidence was sufficient to sustain appellant Jones's conviction for assault with a dangerous weapon under an aiding and abetting theory.

We hold that the trial court abused its discretion by allowing excessive evidence of appellants' homosexual relationship and appellant Butler's effeminate characteristics. We also hold that the evidence as to Jones was insufficient to sustain a conviction for assault with a dangerous weapon under an aiding and abetting theory. Accordingly, we reverse Butler's conviction and remand for a new trial. We also reverse Jones's conviction and remand for the entry of a judgment of acquittal, since reversal of his conviction on the additional ground of insufficient evidence is a bar to a new trial.¹See Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978).

I.

The government's evidence² showed that Christine Filosa, a volunteer kindergarten teacher, was stabbed in the chest with a serrated-edged steak knife near the intersection of Park Road and Sixteenth Street, Northwest, at approximately 1:45 p.m. on May 9, 1988. The stabbing occurred while Ms. Filosa was leading a group of twenty-two kindergartners from the Sacred Heart Parish School to a nearby playground located a block and a half away on Sixteenth Street and adjacent to the Sacred Heart Church. At the time of the stabbing, Ms. Filosa was holding the hands of two children in the front of the group. She was accompanied by her aide, Cynthia Barnes, who was at the rear of the double line of children.

As the group approached the intersection, Ms. Filosa observed a tall man, later identified as Jones, and a short man, later identified as Butler, standing about a foot apart on the corner on the south side of Park Road. Ms. Filosa observed that Butler was looking up and talking animatedly to Jones, who was looking down and listening. She also observed that the two men were looking in her direction.

When Ms. Filosa got close to the corner on the north side of Park Road, she noticed Jones walking toward her from her right side in a slouched, nonchalant manner. Ms. Filosa stepped back to clear a path for Jones to pass in front of her. Jones neither spoke nor gestured as he brushed several inches in front of her without touching her. Ms. Filosa testified that she wasn't frightened of Jones, but that she experienced "a twinge of concern" when he "came so close to her" and "almost a sense of relief when he continued on his way up Sixteenth Street." She testified that she "didn't bother to continue looking at him" once he had passed her.

After Jones had passed Ms. Filosa, she turned around to her left to check on the children. While she was still turned around, she felt a hard blow to her chest. She testified on direct examination that she turned back "instinctively" and saw Butler's face with a "very evil, hateful ... satisfied expression" on it about six inches from her. Without uttering a word or making any overt gesture, Butler pulled the knife out of her chest, tucked it in his jacket, and walked away alone in a "very bouncy ... feminine" manner³ in the same direction as Jones had walked on Sixteenth Street.

By then, Jones had turned around and was coming back down Sixteenth Street toward Butler. One of the children testified that she saw Butler stop and drop the knife in a mailbox, and a police officer testified that he later recovered the knife from the mailbox. Ms. Barnes testified that she watched the two men "join up" and walk away together and that she observed that both were "laughing and talking."

II.

Appellants argue that the trial court abused its discretion by admitting excessive evidence of their homosexual relationship and Butler's effeminate characteristics and by allowing a barrage of related closing argument by the prosecution. They contend that the evidence and argument were unduly prejudicial and deprived them of their constitutional right to a fair trial.

It is well-settled that evidence is relevant if it makes the existence of a contested fact that is of consequence to the determination of the action more or less probable than it would be without that evidence. See Punch v. United States, 377 A.2d 1353, 1358 (D.C.1977), cert. denied, 435 U.S. 955, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978) (citing United States v. Carter, 173 U.S.App.D.C. 54, 73, 522 F.2d 666, 685 (1975)). Although relevant, evidence may be excluded if its potential for prejudicial misuse by the jury substantially outweighs its probative value. See Punch, supra, 377 A.2d at 1358, and cases cited therein. In exercising its discretion, the trial court must weigh the probative value of the evidence in question against the risk of unfair prejudice. See id. Once a trial court has performed the requisite balancing and exercised its judgment, this court will disturb its ruling only upon a showing of abuse of discretion. See id.

"Evidence of homosexuality has an enormous proclivity for humiliation and degradation" and, thus, poses a high risk of prejudicial impact on a jury. Tinker v. United States, 135 U.S.App.D.C. 125, 127, 417 F.2d 542, 544, cert. denied, 396 U.S. 864, 90 S.Ct. 141, 24 L.Ed.2d 118 (1969).⁴ This is especially true where evidence of homosexuality is introduced against a criminal defendant who has a constitutional right to a fair trial. See United States v. Provoo, 215 F.2d 531, 537 (2d Cir.1954) (evidence of defendant's homosexuality elicited by government during cross-examination was inadmissible, because "the sole purpose and effect of this examination was to humiliate and degrade the defendant, and increase the probability that he would be convicted not for the crime charged, but for his ... unsavory character").

The record reveals that appellants moved for a mistrial following the government's opening statement, in which the prosecutor, without prior notice to opposing counsel or judicial approval, told the jury that the evidence would show that the appellants were "intimate homosexual friends" who called each other "husband" and "wife baby" and that Butler went around "telling everybody that he was better than any woman for Jones." The trial court denied appellants' motion with a caveat. The court ruled that appellants' homosexual relationship, although irrelevant in and of itself, was relevant to show a unique association between the two defendants, which provided a basis for their being together at the time of the stabbing of Ms. Filosa, and to show the identity of Ms. Filosa's assailant. The court stated:

Again, ... it seems to me based on what I have heard previously that his sexual orientation itself is irrelevant. The fact that it plays a role in the relationship between the two, the fact that it plays a role in the identification, it seems to me is relevant....

The court admonished the government's counsel, however, for not having at least "forewarned everyone" and directed him to "tone it down." The court also cautioned:

It's one thing for you to say, I know Mr. Butler and Mr. Jones were lovers. I have no problem with them saying that. It puts them in the same location and also puts the relationship of the two together. I don't like the idea of emphasizing over and over again the fact that they are homosexual. Maybe some members of the jury might be offended by that and hold it against the defendants....

Emphasis added.

Prior to proceeding to hear testimony from the first witness, the trial court offered several times to give the jury a limiting instruction, but neither appellant asked for an instruction. Such an instruction, however, may have served only to emphasize the impropriety of the statements and thereby exacerbate their prejudicial impact. See, e.g., Van Ness v. United States, 568 A.2d 1079, 1083 (D.C.1990) (curative instruction would accentuate any improper influence drawn from prosecutor's argument); United States v. Miranda, 593 F.2d 590, 596 n. 7 (5th Cir.1979) (curative instruction in response to improper prosecutorial argument might only enhance the prejudicial impact and thus might in certain cases be inappropriate).

The prosecutor ignored the court's warning to "tone it down" and, to the contrary, proceeded to exploit every opportunity to remind the jury of appellants' homosexual relationship and, in particular, Butler's effeminate characteristics. In total, the trial transcript contains 37 such references in the testimony elicited from witnesses and an additional 31 such references...