McBride v. United States, 80-703.

• Decision Date: 06 January 1982
• Docket Number: No. 80-703.,80-703.
• Citation: 441 A.2d 644
• Parties: Charlene McBRIDE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 644

441 A.2d 644

Charlene McBRIDE, Appellant, v. UNITED STATES, Appellee.

No. 80-703.

District of Columbia Court of Appeals.

Argued February 12, 1981.

Decided January 6, 1982.

COPYRIGHT MATERIAL OMITTED

Andrew L. Lipps, Public Defender Service, Washington, D. C., with whom Silas J. Wasserstrom, Public Defender Service, Washington, D. C., was on the brief, for appellant.

David Howard Saffern, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, Michael W. Farrell, and Robert B. Cornell, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KERN, MACK, and FERREN, Associate Judges.

FERREN, Associate Judge:

This case presents two closely related questions of the law of evidence applicable to a prosecution for possession of a prohibited weapon, D.C.Code 1973, § 22-3214(b): whether the trial court erred in refusing to permit appellant to present testimony about certain threats against her, specifically (1) threats — uncommunicated to appellant — by the complaining witness, and (2) threats — both communicated and uncommunicated to appellant — by the complainant's sister and boyfriend. We conclude that the trial court erred in excluding this testimony. Because we cannot determine on this record whether the error was prejudicial or harmless, we remand the case for further proceedings.

I

The United States filed an information against appellant, Charlene McBride, charging simple assault on Adrian Gray, see D.C. Code 1973, § 22-504, and possession of a prohibited weapon ("a stick"). See id. § 22-3214(b).¹ A jury trial followed.

A. The Government's Evidence

The government's theory was that on April 26, 1979, appellant, a private security guard, struck Adrian Gray with a nightstick which she had been carrying beneath her jacket; thus, she was guilty of both simple assault and possession of prohibited weapon. The government presented its case chiefly through the testimony of (1) the complaining witness, Adrian Gray; (2) Adrian's sister, Georgia Gray; and (3) Adrian's boyfriend, Conrad Williams, commonly known as "Warchild."

According to prosecution witnesses, on April 25, 1979, the day before the fight leading to these charges, appellant won a fistfight with Georgia Gray. Georgia reported the fight to her sister, Adrian, and to Conrad Williams. On cross-examination, Georgia Gray and Williams denied that in the wake of that fight they had threatened appellant. On rebuttal, Adrian, too, denied that she had threatened appellant. She testified, to the contrary, that appellant had called her and "said something to the effect that she had beat up my sister and that I was next."

The next day, April 26, Adrian Gray, Georgia Gray, and Conrad Williams visited a friend who lived in the same apartment complex as appellant. As they departed, they encountered appellant and her sister, Tercora Snead, outside. Prosecution witnesses testified that appellant confronted Adrian, who was five-months pregnant, and "said she was going to knock the baby out of her stomach." Appellant then pulled a brown nightstick from beneath her jacket and swung at Adrian Gray's stomach. Adrian jumped back to avoid the blow.

Georgia Gray then jumped on appellant. Conrad Williams and Tercora and Michael Snead tried to break up the fight. During the commotion, appellant broke loose and hit Adrian Gray across the forehead with the nightstick. Georgia testified that Adrian did not strike appellant during the fight. In addition, Adrian, Georgia, and Conrad Williams all denied that any of them had carried knives or any other weapon that day.

B. The Defense Evidence

Appellant admitted possessing a stick and hitting Adrian Gray with it, but she claimed, with respect to both the assault and possession charges, that she had acted in self-defense. In that regard, in her opening statement, defense counsel alerted the jurors that they would be hearing testimony about threats against appellant by Adrian Gray, Georgia Gray, and Conrad Williams. During trial, defense counsel sought to elicit such testimony from (1) appellant, (2) her sister, Tercora Snead, and (3) appellant's boyfriend, Frank Lloyd. The trial court, however, barred the testimony on relevance and hearsay grounds.

According to defense witnesses, at the time of this incident appellant lived with her sister and brother-in-law, Tercora and Michael Snead. Appellant worked as a private security officer and carried a nightstick while on duty. She left the nightstick in her locker at work on April 24, 1979, and did not pick it up again until after her arrest and release.

Defense witnesses further testified that on April 25, 1979, Georgia Gray had cursed appellant and swung at her, causing a fight between them. Tercora Snead received "about 10" telephone calls from Adrian or Georgia Gray that day. Tercora did not testify as to the substance of the calls, however, for the trial court "sustain[ed] the [government's] objection regarding hearsay telephone conversations."

The trial, court also prevented Frank Lloyd, appellant's boyfriend, from testifying about a phone call he had received at appellant's home from the Gray sisters, as well as about his conversation with Georgia Gray concerning her relationship with appellant.

In addition to these calls from the Gray sisters to Tercora Snead and Frank Lloyd, appellant testified that she herself received telephone calls at home on the evening of April 25 from Adrian Gray, who allegedly said, "[Y]ou B, you got my sister, but I am going to kick your "Defense counsel asked appellant whether Adrian's boy-friend, Conrad Williams, had said anything to her over the phone. The trial court, however, sustained the government's objection, stating: "We are not interested in what Warchild said. If he were the complaining witness in this case and said something in the nature of a threat, I would listen to it. But Warchild is not the complaining witness, and neither is Georgia. . . . ."

On April 26, the morning after appellant's fight with Georgia Gray, appellant left her apartment to go to the grocery store. Just after she had departed, her sister, Tercora Snead, received a call from Adrian Gray, who said, "MF, I am here." Outside, appellant saw Adrian and Georgia Gray and Conrad Williams. When they began to chase appellant with a knife, she fled back to the apartment and called the police.

When the police did not respond to the call, appellant, this time accompanied by Tercora Snead, began walking to the market again. Adrian Gray, Georgia Gray, and Conrad Williams still were standing outside. Adrian came toward appellant and swung at her; both women started fighting. When Adrian brandished a knife, appellant retreated to the custodian's trashcan, picked up a stick, and hit Adrian Gray on the forehead with it.

Tercora Snead tried to break up the fight and, as a result, began to struggle with Georgia Gray. Conrad Williams grabbed appellant and Tercora Snead. Michael Snead then pulled Williams off his wife. Michael Snead and appellant's nephew, Samuel Robinson, broke up the fight between appellant and Adrian Gray.

C. The Verdict

The jury acquitted appellant of simple assault, D.C.Code 1973, § 22-504, but convicted her of possession of a prohibited weapon with intent to use it unlawfully against another. Id. § 22-3214(b).² The trial court suspended sentence and placed appellant on one-year probation under the Federal Youth Corrections Act, 18 U.S.C. § 5010(a) (1976). Appellant timely noted her appeal. See D.C.Code 1973, § 11-721(a)(1); D.C.App.R. 4 II(b)(1).

II.

We begin by examining the crime of possession of a prohibited weapon, D.C.Code 1973, § 22-3214(b) (PPW (b)),³ and then considering, in general, the relevance and admissibility of threats evidence in relation to a defense against that charge.⁴

A. In 1953, in order to strengthen controls over possession of dangerous weapons in the District of Columbia, Congress amended the statutes governing weapons offenses. Degree v. United States, D.C. Mun.App., 144 A.2d 547, 549 (1958); see United States v. Shannon, D.C.Mun.App., 144 A.2d 267, 268 (1958); District of Columbia Law Enforcement Act of 1953, Pub. L.No. 85, 67 Stat. 90. In addition to making changes in the laws proscribing "carrying a concealed weapon"⁵ and barring the possession of certain necessarily dangerous weapons⁶ (as well as changes in other weapons provisions), Congress added a new section outlawing possession of certain dangerous instruments if-but only if-possession of the weapon is coupled with "intent to use [it] unlawfully against another." District of Columbia Law Enforcement Act of 1953, supra § 204(h) (codified at D.C. Code 1973, § 22-3214(b)); see Jones v. United States, D.C.App., 401 A.2d 473, 475 (1979); Darden v. United States, D.C.App., 342 A.2d 24, 27 (1975); note 3 supra.

In contrast with other weapons offenses, therefore, this new section, PPW(b), created a "specific intent" crime.⁷ The government must prove beyond a reasonable doubt that the defendant had the "intent to use [the weapon] in an assaultive or otherwise unlawful manner." United States v. Brooks, D.C.App., 330 A.2d 245, 246-47 (1974). Although PPW(b) does "not require evidence of an attempt to do harm," Cooke v. United States, D.C.App., 213 A.2d 508, 510 (1965); accord, Jones, supra at 475-76, such an attempt may provide evidence of the defendant's unlawful intent. See Cooke, supra, at 510; Rucker v. United States, 109 U.S.App. D.C. 362, 363-64, 288 F.2d 146, 147-48 (1961).

The specific intent element of PPW(b) provides the basis for a broader defense than the defenses available for general-intent weapons offenses. Three possibilities are instructive. First, if a defendant admits possessing an instrument but denies using (or attempting to use) it against another, she could defend on the ground that during the entire period of possession she had carried the instrument for a wholly innocent,⁸ merely...