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05/30/91 ARNOLD J. HILL v. UNITED STATES

May 30, 1991

ARNOLD J. HILL, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Gladys Kessler, Trial Judge

Ferren, Belson, and Terry, Associate Judges. Opinion for the court by Associate Judge Terry. Dissenting opinion by Associate Judge Ferren.

The opinion of the court was delivered by: Terry

After a jury trial, appellant was convicted of first-degree murder while armed *fn1 for the strangling death of his former girl friend, Shelby Duncan. On appeal he contends that the trial court erred in admitting evidence of a prior attack on Duncan under the motive exception set forth in Drew v United States, 118 App. D.C. 11, 331 F.2d 85 (1964). Although we agree with appellant that the amount of evidence presented about that earlier incident was excessive, we nevertheless affirm the conviction because the evidence was admissible to prove appellant's motive as well as the circumstances surrounding the murder, and because the defense, though challenging its admissibility, never objected to its quantity.

I

Appellant Hill shared an apartment with Duncan and her three children until May 19, 1987, when Duncan told him to leave. His departure was precipitated by an assault on Duncan during which Hill choked her and held a pillow over her face. After freeing herself from his grasp, Duncan called the police and her sister, who arrived and took the children to stay with their grandmother. Duncan filed a complaint concerning the assault with the Citizens Complaint Center later that day.

Despite their earlier breakup, Duncan allowed Hill to sleep on her couch on the night of August 6, 1987. The following morning Duncan discovered $700 missing from her purse. Drawing the obvious inference that Hill had taken the money, she reported the theft to Hill's employer and filed a second complaint with the Citizens Complaint Center.

A hearing on both complaints was held at the Citizens Complaint Center on August 13. Hill denied that he had tried to suffocate Duncan on May 19, but admitted that he had picked her up by the throat and thrown her across the room because she had "gotten in face." Hill also agreed to make restitution of the $700, although he refused to admit that he had taken the money. Just as Duncan was leaving the hearing, Hill approached and whispered something to her which left her visibly shaken. As soon as Hill walked away, Duncan told the Assistant United States Attorney who had conducted the hearing that Hill had just threatened to kill her. As she spoke, her voice quavered, and her hands were trembling.

On the morning of September 4, less than a month later, Duncan's nude body was found in her bedroom by her children. She had been strangled. There were no signs of forced entry, a fact which suggested that Duncan herself might have let the killer into her apartment. The medical examiner determined the time of her death to have been between 6:40 p.m. on September 3 and 1:40 a.m. on September 4. Police officers investigating the murder located a witness who had seen Duncan in the building and spoken with her shortly after 11:30 p.m. on September 3, and three others who had seen Hill leaving the apartment house sometime after midnight.

Hill was arrested and charged with Duncan's murder. Before trial began, the government moved to admit evidence of the May 19 assault. At the hearing which followed, the prosecutor argued that the assault, theft, and subsequent complaints which were filed with the Citizens Complaint Center provided Hill with a motive for the murder. After weighing the probative value of the proffered evidence against its prejudicial effect, the court granted the government's motion, ruling that "the issue of motive an essential part of the Government's circumstantial case" and that a stormy relationship was highly probative of motive in the context of a domestic homicide.

At trial the government presented considerable evidence about Hill's May 19 attack on Duncan. Duncan's nine-year-old daughter testified that she awoke to hear her mother exclaim, "Why are you choking me? Why are you trying to kill me?" Duncan's six-year-old son testified that he was awakened during the night by his mother's cries and that he heard his sister say to Hill, "Get off my mommy." The police officer who answered Duncan's call recounted what he knew about the events of that evening. The government played for the jury the tape of Duncan's "911" call to the police during which Duncan said, "I have been choked, you name it." Duncan's sister testified that when she picked up the children after the incident, Duncan told her, "He was trying to kill me, he was choking me, he wouldn't let me out, he was trying to kill me, he had a pillow over my head." The Assistant United States Attorney who conducted the hearing at the Citizens Complaint Center testified about Hill's statements at that hearing and about the post-hearing threat to kill Duncan.

Hill contends that the evidence of his assault on Duncan almost four months before her death had no logical relevance because it failed to prove that he had any reason to kill her. He argues that this evidence encouraged the jury to conclude that his earlier feelings and actions made it more likely that he, rather than someone else, felt and acted in a similar fashion at a later date. This, Hill insists, is impermissible "propensity" evidence.

The government maintains that evidence of the assault tended to prove the motive for Hill's murder of Duncan because he was angered by the complaints she filed against him and by the fact that she reported his activities to his employer, who eventually fired him. Since there was no eyewitness testimony about the murder, the government had to rely on evidence that Hill had a motive to kill Duncan in order to prove his identity as the murderer. When the prosecutor made the same argument below, the trial court agreed with him, citing Clark v. United States, 412 A.2d 21 (D.C. 1980), as authority for the proposition that the violent relationship between Hill and Duncan was probative of Hill's motive to kill her.

II

"It is a principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged." Drew v. United States, supra, 118 App. D.C. at 15, 331 F.2d at 89 (emphasis in original). Because of the obvious potential that such "other crimes" evidence may deny the defendant a fair trial, evidence of this sort is presumptively inadmissible. Thompson v. United States, 546 A.2d 414, 419 (D.C. 1988); Campbell v. United States, 450 A.2d 428, 430 (D.C. 1982). This presumption of exclusion exists "because of the likelihood that jurors will impermissibly infer that the defendant has a propensity to engage in criminal behavior and so presume guilt." Landrum v. United States, 559 A.2d 1323, 1325 (D.C. 1989) (citations omitted). Only when the evidence of wrongful behavior is relevant under one or more recognized exceptions to this exclusionary principle can it be presented to the jury. There are five principal "Drew exceptions." Evidence of other crimes "is admissible when relevant ...


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