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06/21/91 OLIVER J. CLARK v. UNITED STATES

June 21, 1991

OLIVER J. CLARK, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. John R. Hess, Trial Judge

Ferren and Schwelb, Associate Judges, and Belson,* Associate Judge, Retired.

The opinion of the court was delivered by: Schwelb

Oliver Clark was convicted by a jury of second-degree murder while armed, D.C. Code §§ 22-2403, -3202 (1989), and of two misdemeanor weapons offenses. *fn1 The charges were precipitated by the fatal shooting of Clark's long-term "girlfriend," *fn2 Helen Harrison. Clark was sentenced to a prison term of no less than five and no more than twenty years for the homicide and to two one-year prison terms for the misdemeanors, all three sentences to run concurrently.

On appeal Clark contends, among other things, that the trial Judge committed reversible error in admitting into evidence, over defense objection, testimony by prosecution witnesses regarding out-of-court statements allegedly made to them by the decedent regarding past acts of violence by Clark and threats said to have been directed at her by Clark. We agree with Clark that this evidence, which the trial Judge admitted as relevant to the decedent's state of mind, was at most marginally germane to any genuine issue in the case. At the same time, the challenged testimony brought before the jury devastating hearsay evidence of alleged past bad acts which Clark was precluded from challenging through cross-examination. We hold that the prejudicial effect of this evidence substantially outweighed its minimal probative value. Accordingly, we reverse Clark's murder conviction and remand the case for a new trial.

I

THE EVIDENCE

The trial of this case lasted four days, and the testimony was extensive. We recount only that part of the evidence which we view as relevant to our Disposition of this appeal.

A. The events of November 7, 1987.

During their twelve-year romantic relationship, Oliver Clark and Helen Harrison both apparently abused alcohol with some frequency. They often quarreled, and prosecution witnesses claimed at trial that Clark bullied and mistreated Ms. Harrison verbally and sometimes physically. Although the events which precipitated Ms. Harrison's death were sharply contested during the trial, it appears that the couple's drinking and bickering produced the tragic confrontation which ended Ms. Harrison's life and jeopardized Clark's liberty.

On the evening of November 7, 1987, in the bedroom of the apartment which she shared with Clark, Helen Harrison died instantaneously from a single gunshot wound to her head. The bullet entered the right side of her head and came out from the left side. The controversy at trial centered upon the events that immediately preceded the shooting and, especially, on Clark's state of mind.

The government claimed that Clark became angry because Ms. Harrison was "messing" with him, and that he shot her deliberately and with malice aforethought. Clark agreed that Ms. Harrison had been "messing" with him, but he contended that the shooting was accidental and that it occurred after Ms. Harrison, who had been drinking and had a "strange" look in her eyes, pointed a pistol at him. He testified that he attempted to disarm her and that the weapon discharged during the struggle. The government countered that Clark's version at trial was contrived after the fact, and that on the evening in question Clark had failed to mention to his daughter, to his former wife, to the police dispatcher to whom the incident was reported, or to the police officers who came to investigate, that Ms. Harrison had been in possession of the pistol or had pointed it at him. According to the prosecution witnesses, Clark's contemporaneous version had been that Ms. Harrison had "messed" with him, that he did not know the pistol was "cocked," and that he had merely wanted to frighten her. A police officer also testified that Clark said on the scene that he was "guilty."

B. Other evidence.

Apparently recognizing that the past is prologue, the government attempted to place the events of November 7, 1987 in perspective by illuminating the history of the relationship between Clark and Ms. Harrison. Some of the prosecution evidence regarding past events consisted of testimony by witnesses who had personally observed those events; the defense conceded the competence of this evidence, but objected to its admission on the ground that it constituted impermissible evidence of the defendant's bad character. The prosecution also presented testimony by several witnesses regarding statements allegedly made to them by Ms. Harrison regarding Clark's conduct towards her; the defense contended that this evidence was inadmissible not only on the previously stated ground, but also because it was hearsay.

Several witnesses, including Clark's daughter, Elaine Clark Hicks, and his former wife, Eleanor Clark, testified that Clark had a severe drinking problem, drank every day, and acted in an aggressive and violent manner when under the influence of alcohol. Ms. Hicks also testified that in 1977 or 1978, she was present when Clark hit and kicked Ms. Harrison and that, on other occasions, she had seen Ms. Harrison with a black eye and a swollen face. Alice Jones, Ms. Harrison's aunt, testified that she had likewise seen Ms. Harrison several times with a black eye and with other facial injuries.

Ms. Hicks testified that she had asked Clark about Ms. Harrison's injuries, and that Clark told her that Ms. Harrison "got what she deserved" because she "kept bothering him." Ms. Jones related that she made similar inquiries, and that Clark responded that Ms. Harrison "runs off at the mouth."

Ms. Jones never personally observed any abuse of her niece by Clark. She was, however, permitted over objection to testify to statements which Ms. Harrison had made to her on the subject. Specifically, Ms. Jones stated that approximately five years before her death, Ms. Harrison told her on two separate occasions, in response to her inquiries, that Clark had beaten her and inflicted injuries (a black eye and a bruised jaw) which were visible to Ms. Jones.

Sheila Harrison, Helen Harrison's daughter, lived with her mother and Clark in 1985. Like other witnesses familiar with the couple, Sheila Harrison observed both of them drink and argue. The daughter testified that in 1987, her mother telephoned her and told her that Clark wanted to kill her (the mother).

Officer Stuart Smith of the Metropolitan Police Department also appeared as a prosecution witness. Officer Smith testified that on July 23, 1980, he responded to Clark's apartment, where he spoke to Helen Harrison. Ms. Harrison was upset and distraught. According to Officer Smith,

[Ms. Harrison] said that Clark had threatened her life and that she was very concerned about this because it was part of a pattern of abuse that had gone on for some time -- [an objection was made and overruled]. She. . . was saying that "not only has he threatened me, but because he has beaten me and harmed me physically in the past," . . . that's why I believe this.

The defense moved for a mistrial following Officer Smith's testimony, but the Judge denied the motion. The Judge instructed the jury, however, that statements allegedly made by Ms. Harrison to the witnesses could be considered only for the purpose of proving her state of mind on November 7, 1987, and not as proof of the facts asserted.

II

LEGAL DISCUSSION

A. The decedent's out-of-court statements.

Clark contends that the testimony of prosecution witnesses regarding Ms. Harrison's alleged statements to them describing Clark's past abuse of her ought not to have been received in evidence. We agree. The purported issue to which the trial Judge deemed the testimony relevant -- Ms. Harrison's state of mind on the night of the homicide -- was at most a marginal one, and the challenged evidence did not significantly illuminate it. The potential for prejudice, on the other hand, was substantial, for the out-of-court accusations by Ms. Harrison, if credited, tended to establish a pattern of intense mistreatment over a period of many years and thus to cast grave doubt on Clark's defense of accident. Clark, of course, had no opportunity to cross-examine Ms. Harrison regarding the events which she allegedly related to the prosecution witnesses.

The notion that Ms. Harrison's out-of-court statements were admissible to cast light on her own state of mind emerged rather late in the case. On October 6, 1988, the government filed a pretrial motion seeking admission of evidence of prior crimes. In its motion, the government proffered not only incidents which had been observed by prosecution witnesses, but also statements made by the decedent to those witnesses. Although these two kinds of proposed testimony present discrete types of evidentiary problems -- proof of the events observed by witnesses would be competent, but could be attacked as "other crimes" evidence subject to the strictures of Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964), while Ms. Harrison's out-of-court statements also raised obvious hearsay issues -- the prosecution's motion made no attempt to differentiate between the two and did not discuss the hearsay issue at all. *fn3 Both in its pretrial motion and at trial, the government insisted that the decedent's out-of-court statements were admissible to prove Clark's state of mind, i.e. that he killed Ms. Harrison with malice and with a bad motive, rather than by accident.

Although he originally agreed with the government's theory, see note 3 supra, the Judge eventually rejected it and, instead, ruled as follows:

The defense here is accident and the defendant has stated at the time that this was an accident, "she messed with me, I didn't realize the gun was loaded, but I shot her." And it seems to me that incidents of abuse in the past by the defendant particularly when he was drinking as on this occasion would tend to show that Helen's state of mind was such that she would not have messed with this defendant on the date in question and ...


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