Rink v. United States, 11862.

• Decision Date: 21 June 1978
• Docket Number: No. 11862.,11862.
• Citation: 388 A.2d 52
• Parties: Bernice V. RINK, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

388 A.2d 52

Bernice V. RINK, Appellant, v. UNITED STATES, Appellee.

No. 11862.

District of Columbia Court of Appeals.

Argued April 13, 1978.

Decided June 21, 1978.

COPYRIGHT MATERIAL OMITTED

Sidney E. Rabb, Cleveland, Ohio, for appellant. Dorsey Evans was on the brief for appellant. David R. Taxin, Washington, D. C., also entered an appearance.

Richard C. Otto, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Peter E. George and Mark H. Tuohey III, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. Michael W. Farrell, Asst. U. S. Atty., Washington, D. C., also entered an appearance.

Before GALLAGHER and NEBEKER, Associate Judges, and UGAST, Associate Judge, Superior Court of the District of Columbia.^*

GALLAGHER, Associate Judge:

After a jury trial appellant was convicted of second degree murder while armed, D.C. Code 1973, §§ 22-2403, -3202. On appeal she raises five issues for our consideration, relating to: (1) the admission of evidence concerning appellant's prior threatening statements and acts against the decedent, Otis Hill; (2) the failure of the trial court to give an immediate and complete cautionary instruction sua sponte as to the use of that evidence; (3) the court's refusal to admit certain prior consistent statements of hers; (4) the court's denial of her mistrial motion after an assertedly improper question by the prosecutor; and (5) her right to a speedy trial. We affirm.

The deceased, Otis Hill, was shot and killed by appellant on June 1, 1975. It was the culmination of their long and turbulent relationship which had begun in the late 1960's. The two had lived together for several years and continued to live together up until either May or June 1975. Apparently adding to the friction in their relationship were the deceased's dates with another woman for some time prior to the fatal evening.

During the afternoon of June 1, 1975, appellant obtained a pistol from her so-called brother-in-law — purportedly because someone had tried to break into her apartment the previous night. Later in the evening she went to the home of the woman that Mr. Hill had been dating and found them together. A fight then ensued between the two women. Following this fight, Mr. Hill left with Ms. Rink and, after a brief stop on the way, went to her apartment at 4232 4th Street, Southeast, where the homicide took place.

Appellant argues that the testimony of two prosecution witnesses concerning her prior threatening statements and acts towards the deceased was inadmissible for two reasons: (1) because it did not fall within any of the recognized exceptions of Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964); and (2) even if the testimony falls within one of the exceptions, its probative value is outweighed by its prejudicial effect. The government responds that the testimony of the two witnesses bears on the issue of appellant's motive or intent — two of the recognized exceptions of Drew, supra at 16, 331 F.2d at 93, and that its probative value outweighs its potential prejudicial effect. Both arguments are premised on an imprecise characterization of the issue before us. The testimony does not deal so much with prior crimes or offenses committed by appellant — which is what Drew addressed — as it does with her prior threats and expressions of hostility — both in statements and conduct — directed towards the deceased.

The witness, Jane Floyd, was permitted to testify, over objection, that in February 1975, appellant had shown her a pistol and said she would "fix Otis" with it. Ms. Floyd also testified that appellant had told her on other occasions that "if she couldn't have him, then couldn't nobody have him." The other witness, John Jackson, was permitted to testify that in March 1975, when the deceased had not returned home from gambling, appellant showed the witness a pistol and "told me she was going to kill Otis. She was tired of him f____ her over." He also testified that a week later, upon the deceased's return from another night of gambling, appellant pulled out the same pistol. He said she pointed the gun in Otis Hill's face and told him "if he didn't marry her, she was going to kill him." Mr. Jackson also testified that in early April 1975 appellant again showed him "the pistol she was going to shoot him with."

The court ruled the testimony admissible to show appellant's motive or intent to commit the offense charged. Appellant claims that motive or intent are not issues in this case because she admits having intended to shoot him, but only in self-defense. The prosecution, however, has the duty, as it presents its case, to establish each element of the offense charged. An element of second degree murder is malice aforethought. Butler v. United States, D.C.App., 322 A.2d 279, 280 n. * (1974).

For second degree murder, the necessary malice is in part defined as "a condition of mind which prompts a person to do wilfully, that is, on purpose, without adequate provocation, justification, or excuse, a wrongful act whose foreseeable consequence is death or serious bodily injury to another." . . . In second degree murder, the state of mind is the critical determination to be made respecting existence of malice.

Curry v. United States, D.C.App., 322 A.2d 268, 271 (1974) (Nebeker, J., concurring). The testimony of which appellant complains is relevant to the issue of her state of mind — her intent — at the time of the killing. As set forth by one leading commentator:

Evidence of a threat may . . . show the mental state with which the defendant acted, and establish the identity of the aggressor . . .

[E]vidence that the defendant possessed a gun and threatened to kill the deceased would, of course, be relevant.

Evidence of a threat is relevant and admissible even though the threat is conditional in form. It is immaterial whether the condition is in such form that the victim can avoid the threatened harm by refraining from doing a specified act, or that the victim must do a specified act in order to avoid the harm. Thus, a conditional threat is admissible without regard to whether the victim did or did not do the act specified in the condition.

1 Torcia, Wharton's Criminal Evidence §§ 201-02, at 415-17 (13th ed. 1972) (footnotes omitted). Accordingly, we hold that the testimony of both witnesses concerning appellant's threats and other expressions of hostility were relevant to determine her state of mind and admissible for that purpose.

As for appellant's conduct in pointing the pistol at the deceased in connection with her threats and other expressions of hostility, evidence of prior aggressive conduct of the defendant towards the deceased is relevant when there is a claim of self-defense. United States v. Grover, 158 U.S.App.D.C. 260, 263-64 & n. 7, 485 F.2d 1039, 1042-43 & n. 7 (1973); United States v. Burks, 152 U.S.App.D.C. 284, 286, 470 F.2d 432, 434 (1972); see also Harris v. United States, 124 U.S.App.D.C. 308, 364 F.2d 701 (1966). Such evidence is probative of: (1) the existence of appellant's malice towards the deceased;¹ (2) whether appellant was likely to be the aggressor in the encounter at issue;² and (3) whether appellant reasonably apprehended a danger of imminent, serious bodily harm from the deceased.³ Furthermore, evidence concerning prior instances of hostility, prior assaults, and the like are particularly relevant in marital homicide cases. Gezmu v. United States, D.C.App., 375 A.2d 520, 522 (1977).⁴ Consequently, we hold that the testimony was properly admitted into evidence. Gezmu v. United States, supra.

Appellant also complains that the trial court erred in failing to give a complete cautionary instruction immediately after the admission of the testimony about her prior threatening statements and conduct. At trial her counsel objected and requested the court to instruct the jury on the limited purposes for which the testimony was admitted. The prosecutor and trial court then discussed a procedure that had been used before, whereby the court would give a shortened cautionary instruction⁵ to the jury at the close of each witness' testimony and a complete cautionary instruction at the end of the trial in its charge to the jury.⁶ Her counsel not only did not object to this procedure, he acquiesced in it.

Due to appellant's failure to object to the instruction procedure adopted, she bears the heavy burden of demonstrating that the trial court committed plain error, viz., error "so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial." Watts v. United States, D.C.App., 362 A.2d 706, 709 (1976) (en banc); see also Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). We do not think she carried that burden here because the trial court did give a shortened cautionary instruction to the jury immediately after the witnesses' testimony and a full cautionary instruction at the end of the trial. See Miles v. United States, D.C.App., 374 A.2d 278, 283 (1977); Curry v. United States, supra at 270; see also Gezmu v. United States, supra at 522.⁷

Appellant also argues that the trial court erred in refusing to permit certain defense witnesses to testify as to her statements to them that she had been beaten on several occasions by the deceased. She claims that those statements are admissible to show her state of mind — her fear of the deceased. The government argues that the statements are inadmissible both because they constitute hearsay evidence and because they are prior consistent statements which cannot be introduced unless and until appellant's version of the events recounted in the statements is impeached.

We do not doubt that appellant's state of mind — her reasonable apprehension of imminent, serious bodily harm — with reference to the deceased during the period up to and including the time of the killing is relevant to her...