United States v. Burks

• Decision Date: 19 October 1972
• Docket Number: No. 71-1821.,71-1821.
• Citation: 470 F.2d 432
• Parties: UNITED STATES of America v. James H. BURKS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

470 F.2d 432 (1972)

UNITED STATES of America v. James H. BURKS, Appellant.

No. 71-1821.

United States Court of Appeals, District of Columbia Circuit.

Argued September 8, 1972.

Decided October 19, 1972.

Mr. R. Jack Roberts, Washington, D. C., with whom Mr. Lawrence Speiser, Washington, D. C. (both appointed by this court), was on the brief, for appellant.

Mr. James A. Fitzgerald, Asst. U. S. Atty., with whom Messrs. Harold H. Titus, Jr., U. S. Atty., and John A. Terry and Edwin A. Williams, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

Appellant was charged with first degree murder and carrying a dangerous weapon. The facts, according to the Government's version of the story, indicated deliberate and premeditated murder. The decedent Price owed appellant part of the purchase price of a truck. Appellant visited Price on the morning of December 19, 1969, at the apartment project where Price worked, and asked Price to either pay the money or return the truck.¹ After Price refused, an argument ensued in which verbal threats were exchanged, but appellant left before any fight erupted. Later in the day appellant went to the house of a friend named Lombre where he obtained a gun. Returning to the apartment project that afternoon, he walked over to Price, who was then fixing an outside door to one of the apartments, pushed him into the apartment, and shot him three times.

Appellant took the stand and admitted firing the fatal shots, but he claimed to have acted in self-defense. According to his version of the incident, he had called his friend Lombre after his initial confrontation with Price and asked Lombre to drive him back to the apartment project later in the afternoon. His purpose in returning was not to encounter Price again, but rather to talk to Price's employer who had agreed to try to talk Price into settling the debt. Appellant wanted Lombre to come along for protection² as he was afraid of Price, not only because Price had threatened him and had warned him not to try to take back the truck, but also because Price was much larger than appellant and appellant knew that Price had killed his own six-year-old son some years earlier.³

When appellant arrived at Lombre's home before returning to the apartment project, Lombre was very sleepy, apparently as a result of holiday season partying, and was thus unable to drive him there as they had earlier agreed. Remembering that Lombre kept a revolver, appellant searched for and found the gun and put it in his jacket, intending to use it only to frighten Price off in the event of a physical attack. When he saw Price working outside one of the apartments, Price called to him to come over and then asked him to step inside the apartment with him. Once inside, appellant testified, Price told him "he wanted him" and started coming toward him. Appellant warned that he had a gun. Price said, "Go ahead and shoot," and moved as if to swing at appellant, who then fired.

The jury found appellant guilty of carrying a dangerous weapon and second degree murder. Because the trial court committed prejudicial error in refusing to admit certain evidence offered by the defense, we reverse the conviction of second degree murder.

I

In order to corroborate appellant's own version of the killing, the defense attempted to introduce evidence of Price's violent and dangerous character — specifically evidence that Price had killed his own six-year-old son in 1965. As this court has long recognized, evidence of the deceased's violent character, including evidence of specific violent acts, is admissible where a claim of self-defense is raised. Such evidence is relevant on the issue of who was the aggressor⁴ and, where there is evidence that the defendant knew of the deceased's character, on the issue of whether or not the defendant reasonably feared he was in danger of imminent great bodily injury.⁵See Evans v. United States, 107 U.S.App.D.C. 324, 277 F.2d 354 (1960); Marshall v. United States, 45 App.D.C. 373 (1916).

The defense first tried to introduce evidence of the deceased's character through the testimony of the deceased's wife, Mrs. Price. When the defense called her to the stand, however, the court questioned the propriety of her testifying and, after a long and confusing colloquy between court and counsel, the court ruled that it would advise Mrs. Price that she need not testify. The court's decision was apparently based on 14 D.C. Code § 306(a) (1967) which provides: "In civil and criminal proceedings, a husband or his wife is competent but not compellable to testify for or against the other."

The common law privilege of one spouse not to testify "for or against" the other is limited in two respects, either of which would bar its application here. First, the privilege applies only when the testimony of one spouse would favor or disfavor "the other spouse's legal interests in the very case in which the testimony is offered."⁶ 8 J. Wigmore, Evidence § 2234, at 231 (McNaughton rev. 1961). (Emphasis in original.) See Halback v. Hill, 49 U.S. App.D.C. 127, 130, 261 F. 1007, 1010 (1919). Mr. Price's legal interests were in no way at stake in this case and the privilege was therefore inapplicable. Second, the privilege ends with termination of the marital relationship through the death of one spouse. See 8 J. Wigmore, supra, at 238-239. The policy of the privilege — protection of family harmony⁷ — cannot be served if the marital relationship has already ended.⁸ While this court has held that 14 D.C.Code § 306 is "a congressional enactment which completely abrogates the common law rule as far as this jurisdiction is concerned," Postom v. United States, 116 U.S.App.D.C. 219, 220, 322 F.2d 432, 433 (1963), cert. denied, 376 U.S. 917, 84 S.Ct. 672, 11 L.Ed.2d 613 (1964), we have also had occasion to note that the purpose of Congress in enacting this statute "was to remove grounds of incompetency, and not increase them. * * * Therefore a husband or wife, under this statute, can claim no greater privilege than existed at common law." Halback v. Hill, supra, 49 U.S.App.D.C. at 130, 261 F. at 1010.

Thus it was error for the court to hold that under 14 D.C.Code § 306(a) Mrs. Price had a privilege not to testify. Nor can the court's action be justified on the basis of the privilege not to reveal confidential marital communications. See 14 D.C.Code § 306(b) (1967). While this privilege survives the death of one spouse, see Hopkins v. Grimshaw, 165 U.S. 342, 351, 17 S.Ct. 401, 41 L.Ed. 739 (1897); United States v. Lewis, 140 U.S. App.D.C. 40, 43 n. 10, 433 F.2d 1146, 1149 n. 10 (1970); McCartney v. Fletcher, 10 App.D.C. 572 (1897), it was nevertheless inapplicable in this case. The confidential communications privilege does not extend to noncommunicative acts, United States v. Lewis, supra, and a communication otherwise privileged loses its privileged character on coming into the hands of a third party, Dickerson v. United States, 62 App.D.C. 191, 65 F.2d 824, cert. denied, 290 U.S. 665, 54 S.Ct. 89, 78 L.Ed. 575 (1933). Under either of these doctrines, the confidential communications privilege would not apply to Mrs. Price's testimony about her husband's beating to death their own child. And if counsel for defendant would have questioned Mrs. Price about other aspects of the deceased's character, conceivably asking her to reveal confidential communications, the appropriate procedure in that event would have been to object to the questions as asked, or to voir dire Mrs. Price out of the presence of the jury to ensure that no such questions would be asked before the jury.⁹ In any case, it was wrong to hold that the witness had the right to refuse to take the stand when it was clear that some of her testimony would have been outside the confidential communications privilege.

At oral argument counsel for the Government contended that appellant should be barred from challenging the court's ruling since the defense never actually called Mrs. Price to ask her whether she would exercise the erroneously granted privilege. Our reading of the record indicates, however, that it was clear to all concerned that Mrs. Price was not going to testify unless she had to. In fact, in making its ruling the court brought the matter to a close by stating, "Well, we'll tell her that she doesn't need to testify. Have you got anything else?" While the proper procedural course would have been to ask Mrs. Price to exercise her privilege for the record, we can attach no significance to the defense's failure to do so in this particular case.

It also appears from the record that the error in barring this testimony was prejudicial. Appellant admitted the shooting, and his sole defense was self-defense. The evidence he sought to introduce was vital to this defense and, even if it might not have induced the jury to acquit, it might well have induced it to return a verdict of guilt for the lesser included offense of manslaughter instead of second degree murder. See Evans v. United States, supra. Nor is it significant that appellant had already brought some attention to the child killing by mentioning it when he testified on his own behalf. While the jury might have discredited his testimony on this issue, it would have had virtually no choice but to believe Mrs. Price if she had taken the stand and testified that Mr. Price had killed their son.

II

The defense also sought to prove Price's violent character by introducing his conviction of a violation of 22 D.C. Code § 901 (1967) which makes it unlawful to "torture, cruelly beat, abuse, or otherwise wilfully maltreat any child under the age of eighteen years * * *." Price had pleaded guilty to this charge, apparently after the Government dismissed an indictment for second degree murder that had issued after the child killing incident. The trial court...