Appeal from the Superior Court of the District of Columbia; Hon. Reggie Walton, Trial Judge, Hon. Robert A. Shuker, Sentencing Judge
Rogers, Chief Judge, and Schwelb and Wagner, Associate Judges.
The opinion of the court was delivered by: Schwelb
Following an eight day jury trial before Judge Reggie Walton, appellant Milton Mills was convicted of two counts of first degree murder while armed, in violation of D.C. Code §§ 22-2401, -3202 (1989); one count of threats, in violation of D.C. Code § 22-2307 (1989); two counts of sodomy, in violation of D.C. Code § 22-3502 (1989); one count of rape while armed, in violation of D.C. Code §§ 22-2801, -3202 (1989); and one count of armed robbery, in violation of D.C. Code §§ 22-2901, -3202 (1989). On May 29, 1989, Mills was sentenced by Judge Robert Shuker to two consecutive terms of twenty years to life on the murder counts and to consecutive terms of imprisonment on the remaining counts. On appeal, Mills' principal contentions are that the government failed to produce sufficient evidence of premeditation and deliberation to support a conviction of first degree murder and that misconduct on the part of the prosecution influenced the jury to return a verdict of guilty for first degree, rather than second degree, murder. We hold that the evidence was sufficient to support the jury's verdict and that, although the prosecutor improperly argued some facts not in evidence and made several inflammatory comments to which no objection was made, this was not sufficient under all of the circumstances to warrant reversal of Mills' convictions or to reduce the first degree murder counts to second degree murder. Accordingly, we affirm.
A. The Government's Case.
This tragic case presents us not with a single "murder most foul and most unnatural," but with two. The prosecution presented evidence, which was obviously credited by the jury, from which reasonable persons might infer that Mills took a hammer from its customary place in the kitchen to the bedroom for the purpose of brutally murdering his six-year-old son and ten-year-old stepdaughter. He subsequently raped, sodomized, threatened and robbed a 15-year-old stepdaughter, brandishing a kitchen knife to enforce his will. His motive for these crimes, reasonably inferable from his statements to the dead children's mother before the murders and to their sister thereafter, was vengeance. The mother was terminating her relationship with Mills, and Mills believed that she was involved with another man.
Until May 20, 1988, Mills had been living at 1650 Fuller Street, N.W. with Odella Hughes and her three children, Sophia Sanders, Dorothy (Janelle) Hughes and Milton Mills, Jr. (Junior). Junior was the son of Appellant Mills, while the two girls were fathered by other men.
Sophia Sanders, who was then in the eleventh grade, testified that she returned home from her job at a clothing store on May 20, 1988 at approximately 8:30 p.m. She saw Mills leaning out of the apartment window. Mills shouted "Hi sweetheart!", or words to that effect. *fn1 Sophia testified that she did not expect to find her mother at home, for she knew that her mother and Mills had been having problems. Indeed, Sophia was aware that her mother had told Mills that if she did not come home after work on his birthday, which fell on May 20th, Mills should take her absence as a signal that she wanted him out of the apartment.
When Sophia entered the apartment, she heard loud music and noticed that the television was also turned on at a high volume. Mills told her that Junior and Janelle were "downstairs at the African girl's ." Mills then asked Sophia whether she had a birthday card for him. Sophia said she had, but that she had not yet signed it. She signed the card and handed it to Mills. It was to be the last friendly moment between the two of them.
Mills told Sophia that he had a surprise for her, and told her to close her eyes. When Sophia did so, Mills proceeded, without any warning, to strike her in the mouth with his fist. As a result of the unexpected blow, Sophia fell to the floor and defecated in her clothing. She began to scream and tried to run out of the locked apartment. Mills responded by knocking the terrified girl to the floor once again and by placing one hand over her mouth and the other on her throat. When Sophia continued to scream, Mills began hitting her with a pillow and threatened her with a marble ashtray.
According to Sophia, Mills next ordered her to undress. He told her that if she did not do so, he would kill her and her mother, sister, and brother. Afraid to disobey, Sophia took off all of her clothes except for her knee-high stockings and her brassiere. Mills likewise removed all of his clothes except his socks. Sophia testified that Mills threatened to cut her if she did not calm down.
As Mills proceeded with his assault by ripping off Sophia's brassiere, the telephone rang. Mills left Sophia momentarily and answered the call. He then went into a bathroom and emerged with a steak knife. Displaying the weapon to Sophia, he warned her not to make him use it. He then took Sophia into her bedroom and demanded to know whether she had any money. Sophia gave him $63.00. Mills' response was "Good, this is going to get me where I got to go when I finish."
Mills threw the money on the floor and then sodomized and attempted to rape Sophia. He threatened to kill her brother and sister if she did not follow his orders. The ring of the telephone again interrupted Sophia's ordeal. Mills warned her to stay put, threatening that he would kill her if she did not do so. He then answered the phone. When he returned, he once again sodomized Sophia and tried again to rape her.
The telephone rang for a third time and on this occasion, the caller was Sophia's mother. Mills told Ms. Hughes that Janelle and Junior were next door. Mills then informed Sophia that her mother wanted to speak to her, but again warned her that if she disclosed what was going on, he would kill her. Sophia went into her mother's unlit bedroom to use the telephone. Mills remained next to her, his hand around her throat.
As she was speaking to her mother, Sophia noticed blood on the rug, the washing machine, and the closet door. She then saw two bodies under the sink and recognized them as those of her brother and sister. Afraid to alert Mills to the fact that she had discovered what had happened, Sophia did not scream. Rather, she attempted to alert her mother to the fact that something was wrong by not answering questions in a normal fashion. Apparently realizing that something unusual was transpiring, Ms. Hughes told Sophia she would call back in a little while.
Mills then took Sophia back into her bedroom, where he again sodomized and attempted to rape her. Thirty minutes later, Ms. Hughes telephoned again, and a terrified Sophia reassured her that everything was fine. Mills ordered Sophia to pour him a drink and to sit on his lap. He told her that everyone had turned her mother against him and that her mother had told him to leave the house. He lamented that he no longer had anything to live for, that all of them were going to suffer with him, and that he would have to kill Sophia because she would otherwise report what he had done. He also told Sophia not to worry, because she "was not the only one." He said he was going to kill Sophia, her mother, and himself with a gun he had purchased. Mills announced that Odella was out with another man and was "fucking" outside the house, so he was going to "fuck" inside the house.
Mills then ordered Sophia to get back on the floor, but gave her his bathrobe to wear. He told her to lie down and threatened to kill her if she screamed. The telephone rang once again and Mills allowed Sophia to answer it. The caller turned out to be a friend of Sophia's. Mills told Sophia that he was going to the bathroom and that she had better be off the phone when he returned. As soon as Mills had left the room, Sophia, who was still dressed only in her red stockings and Mills' bathrobe, unlocked the apartment door and fled down the street to a Domino's Pizza establishment. She told the manager, Elizabeth Merit, that Mills had killed her brother and sister and was after her and was going to kill her too. Observing that Sophia was disheveled, bloody and hysterical, Ms. Merit tried to calm her and called the police.
Sophia testified that throughout the ordeal, she had seen a steak knife in the bathroom and two steak knives and a construction hammer *fn2 on the kitchen counter. She told the jury that the hammer was one which Mills had brought home from work a long time ago, and that it was normally kept on top of the refrigerator or in the kitchen cabinet. She testified that it was unusual for Mills to leave his tools lying around the house.
The police soon arrived at the pizza establishment and found Sophia bleeding and hysterical. After speaking with her, the police officers went to Sophia's home. They knocked on the door, but there was no response. The officers could hear the stereo and television from within. After knocking several more times, they forced their way into the apartment. In the bathroom which adjoined the bedroom, the officers saw feet sticking out of a wool blanket. Upon lifting the blanket, the officers found the bodies of Janelle and Junior. Both children had severe lacerations to the head *fn3 and were lying in a big pool of blood. Janelle's head had been sliced open, exposing part of her brain. According to one officer's testimony, it looked "as if had been sprayed" somehow around the room. Janelle and Junior were immediately taken to the hospital where Junior was pronounced dead. Janelle was still alive, but died the following day.
Robert Lane, who lived in the adjoining apartment building, testified that on May 20, 1988, at approximately 10:00 p.m., he ran into Mills about a block from his home. Mills asked him if he wanted to have a drink to celebrate Mills' birthday. Mills told Lane that he had "killed two or three motherfuckers," that "his prints were still on their necks," and that he "was going to kill two or three more." Mills later claimed that he had been "kidding," and that he "was talking about Spanish people."
Mills was arrested later that night and was taken to the office of the MPD's Homicide Branch. He told the officer guarding him that
it's all my wife's fault. I been home with the kids and she's been dating other men. . They, the kids, didn't deserve what happened to them. . How much time would I have to do? I cannot afford a good lawyer. Officer, I want you to know I love my son. . . . You think I'm crazy, don't you? Well I'm not. I can read and write well. I'm a bright young man with a fucked up wife.
Odella Hughes also testified for the prosecution. She stated that she had been living with Mills for three years. She had told Mills of her love for her children, remarking that she did not know if she could live if anything ever happened to them. By May 20, 1988, Ms. Hughes and Mills were having domestic problems. As a result of these problems, Ms. Hughes told Mills that she wanted him out of the house by his birthday. She related that on the morning of May 20, 1988, before Mills left for work, he asked her whether she would be coming home for his birthday. She replied "no," knowing that Mills knew that the relationship had come to an end and that he was to move out by the end of the day. He responded that "it's going to be one hell of a day, Baby" and left the apartment. At the time when Mills made this remark, Ms. Hughes did not have the impression that he was threatening her. Rather, she thought that Mills meant that he would have a "hell of a day" without her.
Ms. Hughes described several telephone calls which she made to her home on the night of the murders. She first called at 8:00 p.m. and spoke to Mills. She asked where Janelle and Junior were, and he told her they were getting a snack. Mills asked Ms. Hughes whether she was coming home, and she answered in the negative. He then told her that he had changed his mind about leaving the apartment voluntarily, and that if she wanted him to leave, she would have to force him out. Ms. Hughes again insisted that she wanted Mills to leave.
Ms. Hughes called home again later in the evening. She spoke to Mills, who told her that Janelle and Junior were next door. She also spoke to Sophia, and quickly noticed something unusual about Sophia's manner. Half an hour later, Ms. Hughes called again, but Sophia reassured her that everything was "fine." Ms. Hughes ...