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08/23/90 KELVIN L. HOLMES v. UNITED STATES

August 23, 1990

KELVIN L. HOLMES, APPELLANT
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; Hon. Sylvia Bacon, Motions Judge, Hon. Robert I. Richter, Trial Judge

Belson and Schwelb, Associate Judges, and Mack, Senior Judge.

The opinion of the court was delivered by: Schwelb

In these consolidated appeals, Kelvin L. Holmes challenges his convictions for assault with intent to kill while armed, assault with intent to rob while armed, both in violation of D.C. Code §§ 22-501, -3202 (1989 & 1990 Supp.), and obstruction of Justice (injuring a witness), id. § 22-722(a)(5) (1989). He also appeals from the denials of his motion to vacate sentence and motion for a new trial, and further claims that the trial Judge should have granted his motion to suppress tangible evidence. Because we agree with Holmes that certain evidence was improperly admitted against him and that the error was prejudicial, we reverse his convictions and remand for a new trial.

I

THE FACTS

Wayne G. Fowler, the complaining witness, was a traveling jewelry salesman who took his wares from business to business. He often carried about $70,000 worth of jewelry with him. Fowler testified at trial that on February 28, 1986 at about 9:00 a.m., while he was at his home in the 6000 block of Eastern Avenue, Northeast, he received a suspicious telephone call. The caller, who did not identify himself, asked for "Bob" and then hung up. At about 10:15 a.m., following a ten-minute meeting with his jewelry repair man, Alberto Lopez, who is of Hispanic extraction, Fowler left his house carrying the usual amount of jewelry with him in a display case.

As he was warming up his automobile, which was parked on the street outside, Fowler recognized an antique Studebaker which was moving into a parking space down the street as belonging to one Zachary Hood. Fowler and Hood had met in 1984. Hood was then employed at a beauty salon at which Fowler made regular stops. Later in 1984, Fowler had been kidnapped and robbed of his jewelry. Hood had subsequently been identified as the kidnapper. Fowler suspected that Hood was following him because he knew that Fowler would be testifying against him at his then forthcoming trial.

With these less than reassuring thoughts going through his mind, Fowler soon noticed in his side-view mirror that a black man who was dressed in a dark knit hat and long green overcoat, and who was previously unknown to Fowler, was walking toward Fowler's car at a fast, steady pace. As this man reached the rear of the vehicle, Fowler attempted to drive off. As he did so, the stranger fired a shot from a .38 caliber pistol into the driver's side window. The bullet struck Fowler in the head. Fowler drove a short distance and then stumbled out of the car. Some workmen who were in the vicinity called the police.

Based on Fowler's report, Hood was promptly arrested. Hood acknowledged to the police that he played a role in the crime, and he identified Holmes as the trigger man. Seeking to cooperate with the authorities in the hope of securing more lenient treatment, Hood agreed to make a telephone call to Holmes and to have it secretly taped by the police. The principal issue in this case relates to the admissibility of the tape recording of the telephone conversation which ensued.

Hood placed the call to Holmes on March 17, 1986. The transcript of the conversation, quoted at greater length below, reveals that Hood and Holmes had some Discussion relating to the possible robbery of "three white guys" of cash and cocaine with the help of Holmes' "machine gun." Hood also alluded to the shooting of Fowler, and Holmes responded in rather vague terms. The two men also briefly discussed a mutual acquaintance, as well as Holmes' brother, a former police officer.

Later on the day of the call, Holmes was arrested. With his oral and written consent, police searched the bedroom of Holmes' house in Prince George's County, Maryland, and recovered a green army coat, a blue skull cap, a sawed-off rifle and a clip of ammunition. Fowler, who had remarkably survived the shooting even though the bullet had passed through his head and lodged in the speedometer of his car, identified Holmes at a line-up eight days later. *fn1

In addition to Fowler's testimony and the physical evidence, including a .38 caliber bullet recovered from the dashboard of Fowler's car and the taped telephone call, the government presented the testimony of Zachary Hood. Hood said that he was acquainted with Fowler and knew where he lived. He admitted that he had kidnapped and robbed Fowler in 1984. Hood also testified that he and Holmes had been friends since childhood. He claimed that in January 1986, he and Holmes had discussed plans for robbing three white men, for whom Hood had been working, of money and cocaine, and that he and Holmes had later "cased out" the premises, but he testified that the proposed robbery was never carried out. *fn2 He stated that on February 24, 1986, he had met Holmes at a laundromat in Maryland and had solicited Holmes to kill Fowler to prevent Fowler from testifying against Hood regarding the 1984 incident. Hood further testified that he had frankly told Holmes that he could not pay him for the proposed murder. He had informed Holmes, however, that Fowler usually carried $100,000 worth of jewelry with him, and perhaps drugs and money as well, and that Holmes could help himself to Fowler's property after making the hit. According to Hood, Holmes agreed to undertake the mission and stated that he would rob Fowler. The two men "cased out" Fowler's neighborhood on February 25 and 27, 1986.

With respect to the attempt on Fowler's life, Hood testified that on the morning of February 28, he and Holmes drove to Fowler's neighborhood in Hood's car. They stopped at a telephone and made a bogus call to Fowler to ensure that he was at home. Hood dialed Fowler's number and then handed the receiver to Holmes, who asked for "Bob" and then hung up. Hood testified that the two of them watched from an apartment building across the street from Fowler's house for a short time, but then proceeded to Hood's car to wait for their intended victim to emerge. They moved the vehicle to a position from which they could observe Fowler's front door.

At about 9:45 a.m. Hood saw a man who appeared to be Hispanic enter the house. The man left about ten minutes later. At about 10:15 a.m., Fowler emerged from the house and got into his automobile. Holmes, who was wearing a long green overcoat and a dark knit skull cap, got out of Hood's car and began walking toward Fowler's. Hood testified that he saw Holmes shoot Fowler through Fowler's car window and leave the scene running. According to Hood, Fowler's car drove off "as if a dead weight was leaning on the gas pedal." Hood then departed in his own vehicle.

Holmes presented an alibi defense, which was supported by his own testimony and that of Angela Brooks, the mother of his daughter. He also testified that Hood had attempted to recruit him for a variety of criminal ventures, but he denied participating in any of them. Holmes indicated, on the contrary, that he would usually humor Hood, who tried to portray his (Hood's) role as being that of a "big time player." Holmes acknowledged that Hood told him that he was proposing to have a witness "hit," but denied that Hood attempted to recruit him for the job. Holmes denied that, in the taped telephone conversation, he had admitted any involvement in the shooting of Fowler.

II

THE PURPORTED ADOPTIVE ADMISSION

Holmes contends that the taped conversation between Hood and himself contained inadmissible out-of-court statements of Hood implicating Holmes in the shooting and that its reception in evidence enabled the prosecutor to argue, without adequate foundation, that Holmes had admitted his guilt. The government responds that the motions Judge correctly ruled that Hood's statements were receivable as Holmes' adoptive admissions.

According to the transcript, the portion of the conversation leading up to and containing the purported admissions was as follows:

Hood: Now look, do you remember the thing on, um, that I approached you about up at the laundry mat?

Holmes: No, I don't remember that, I don't think.

Hood: Just think . . . remember I got out of my car and got in yours and showed you the um -- the papers?

Holmes: Yeah.

Hood: That were needed, you know on that, on that.

Holmes: Same thing though -- right?

Hood: Right.

Holmes: Yeah.

Hood: Uh, you, you *fn3 hit him in the head man, but he ain't die.

Holmes: Huh, he did. *fn4

Hood: No, he didn't die.

Holmes: Oh, he didn't?

Hood: No.

Holmes: ...


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