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11/14/91 JOHN R. THACKER v. UNITED STATES

November 14, 1991

JOHN R. THACKER, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Peter H. Wolf, Trial Judge.

Terry, Associate Judge, and Kern and Belson,* Senior Judges.

The opinion of the court was delivered by: Terry

Appellant Thacker and a co-defendant, Joice Russell, were convicted of two counts each of first-degree burglary while armed, *fn1 one count each of armed robbery, *fn2 three counts each of first-degree felony murder while armed, *fn3 and one count each of first-degree premeditated murder while armed. *fn4 Both Thacker and Russell noted appeals from their convictions, but for reasons unknown to us (contrary to this court's usual practice) the two appeals were not consolidated. Russell's conviction was recently affirmed by another division of this court. Russell v. United States, 586 A.2d 695 (D.C. 1991). In this appeal Thacker makes several assignments of error. We reject them all, vacate those convictions that merge, see part VII, (infra), and affirm the judgment in all other respects.

I

In August 1986 Denise Lewis lived with her mother in an apartment about a five-minute walk from the apartment of William Jefferson. On August 30, shortly before 9:00 o'clock in the evening, Lewis went to Jefferson's apartment to purchase $50 worth of cocaine. She stayed there for the next few hours, during which time the two of them smoked cocaine and engaged in oral sex.

Jefferson received three telephone calls while Lewis was in his apartment that evening. During the second call Jefferson screamed at the caller, "You owe me, you owe me, hell no, I'm not giving you shit," before banging down the receiver. The phone rang again about five minutes later. During this call Jefferson yelled even louder than before, telling the caller, "You want to come over here and get this goddamn shit and you owe me money, goddamn it, come and get it." Jefferson then slammed the phone down again and told Lewis to "clean up, clean up everything." He gave Lewis some cocaine, which she hid in a pack of cigarettes. Jefferson then went into the bedroom to prepare a package of cocaine, apparently for the person who had just called him.

Joice Russell, Thacker's co-defendant and Jefferson's former girl friend, arrived at the apartment a short time later. Russell asked Jefferson, "Where is the package?" and Jefferson responded, "Where is the money?" Russell said that she did not have the money with her, but that a woman downstairs in the car wanted to examine the package before purchasing it. Jefferson told Russell to go and get the woman. Russell left, and Jefferson sat back down on the couch with Lewis. A few minutes later there was a knock at the door, and as Jefferson began to open it, Thacker and Russell burst into the room. Lewis ran toward the kitchen after hearing Thacker yell at Jefferson, "Hold it right there, mother fucker, didn't I tell you don't fuck with Joice." *fn5 Russell followed Lewis into the kitchen, threatening her with a knife. Lewis saw Thacker standing over Jefferson with another knife, which Thacker had pulled from a sheath he was carrying. Thacker screamed, "Where is it, goddamn it, where is it at?" at Jefferson, who was lying on the floor on his back. Jefferson insisted that he did not have anything.

Russell left Lewis in the kitchen and returned to the living room, where Thacker was asking Jefferson, "Where is it at?" Thacker told Russell to gag Jefferson, and she apparently did so; Lewis saw Russell put something in Jefferson's mouth *fn6 and then heard Jefferson choking. After Russell removed whatever was in Jefferson's mouth, Jefferson again insisted that he did not have anything. Thacker told Jefferson, "If you don't give it to me, I will slash your goddamned eyes out." Lewis then heard Jefferson scream, "My face, my face," and saw Jefferson stumbling around with deep cuts on his face, legs, and chest. All this time Jefferson was screaming, "Don't hurt me, don't hurt me." Jefferson staggered over to some curtains by the window, but Thacker pursued him. Thacker stabbed Jefferson in the right side of his abdomen, then moved the knife over to the left side of Jefferson's abdomen before removing it. Jefferson fell face down on the floor, apparently dead or dying. Thacker felt for Jefferson's pulse and said, "He's gone."

Thacker then ransacked the apartment. Initially he threatened to kill Lewis, but after Russell talked him out of it, he merely forced Lewis to help clean up the blood, saying that he would kill her "the same way he did " if she told anyone what had happened. All three then left the apartment and drove off in Thacker's van. Thacker and Russell dropped Lewis off at an abandoned building after warning her once again not to say anything to anyone.

The next day Thacker and Russell visited Monique Mitchell, Jesse Gulley, and Johnny Nelson. In the course of their visit, both of them told Mitchell in grisly detail about the murder of Jefferson and warned her that what she had just heard was to "stay in this house or else."

Jefferson's body was discovered a few days later. A deputy medical examiner, Dr. Merie-Lypie Pierre-Louis, testified at trial that there were five stab wounds to Jefferson's body and that two of them, one to the chest and one to the abdomen, were "lethal." The doctor also testified that Jefferson had received seven other wounds to his thigh, hand, and shoulder, but these were defensive wounds, resulting from Jefferson's efforts to protect himself. According to the medical examiner, Jefferson died as a result of the two main stab wounds, from which he bled to death.

Russell testified in her own defense, claiming that, to the extent she was involved in the crime at all, Thacker had forced her to participate. Thacker presented no evidence.

II

Thacker contends that the evidence was insufficient to support his conviction of first-degree premeditated murder. *fn7 He argues that the only evidence that could support the required finding of premeditation is Lewis' testimony about the two telephone calls to Jefferson's apartment a short time before his death. Thacker maintains that the trial court abused its discretion by allowing the testimony about these calls into evidence because there was no proof that he or Russell made either call. He urges us to hold that the evidence of the phone calls was erroneously admitted and that the remaining evidence was insufficient to support a finding of premeditation and deliberation.

We need not decide whether the trial court erred in admitting the evidence of the phone calls if we conclude that there was enough other evidence, apart from the phone calls, to support the first-degree murder verdict. We therefore examine the sufficiency of the other evidence, viewing it as we must in the light most favorable to government, and recognizing the right of the jury to assess credibility and to draw reasonable inferences from all the evidence presented. United States v. Hubbard, 429 A.2d 1334, 1337-1338 (D.C.) (citing cases), cert. denied, 454 U.S. 857, 70 L. Ed. 2d 153 , 102 S. Ct. 308 (1981); Byrd v. United States, 388 A.2d 1225, 1229 (D.C. 1978) (citing cases).

To prove first-degree premeditated murder, the government must show beyond a reasonable doubt that the defendant acted with premeditation and deliberation. McAdoo v. United States, 515 A.2d 412, 427 (D.C. 1986); Watson v. United States, 501 A.2d 791, 792 (D.C. 1985); Hall v. United States, 454 A.2d 314, 317 (D.C. 1982); Head v. United States, 451 A.2d 615, 623 (D.C. 1982). Premeditation requires proof that the defendant gave "thought before acting to the idea of taking a human life and a definite decision to kill." Watson, supra, 501 A.2d at 793 (citation omitted); accord, McAdoo, supra, 515 A.2d at 427; Head, supra, 451 A.2d at 623. Deliberation requires proof that the defendant acted with "consideration and reflection upon the preconceived design to kill, turning it over in the mind, giving it second thought." Watson, supra, 501 A.2d at 793 (citation omitted). Both premeditation and deliberation may be inferred from the facts and circumstances surrounding the killing. McAdoo, supra, 515 A.2d at 427; Head, supra, 451 A.2d at 623. The fact that the accused carried the murder weapon, or indeed any deadly weapon, to the murder scene is highly probative of premeditation and deliberation. McAdoo, supra, 515 A.2d at 427; United States v. Brooks, 146 U.S. App. D.C. 1, 8-9, 449 F.2d 1077, 1084-1085 (1971).

In addition to the phone calls, the evidence showed that Thacker brought a knife to Jefferson's apartment, screamed at Jefferson about his involvement with Russell, and then proceeded to stab Jefferson repeatedly while Jefferson pleaded for his life. The fact that Thacker brought the knife with him is "highly probative of premeditation and deliberation. . . as it permits the inference that appellant arrived on the scene already possessed of a calmly planned and calculated intent to kill." McAdoo, supra, 515 A.2d at 427 (citations and internal quotation marks omitted). *fn8 Furthermore, a reasonable juror could fairly conclude from Thacker's remarks to Jefferson (not to "fuck with Joice") that Thacker's motive for the murder was jealousy. *fn9 This evidence was more than sufficient to support a Conclusion that Thacker gave "thought before acting. . . and a definite decision to kill." Watson, supra, 501 A.2d at 793 (citation omitted). We therefore hold that the government introduced sufficient evidence, apart from the evidence of the phone calls, to support the jury's finding of premeditation.

A reasonable juror could also conclude from the evidence that Thacker acted with deliberation in killing Jefferson. Thacker stabbed Jefferson at least live times while Jefferson pleaded repeatedly for his life. Jefferson attempted to crawl away before Thacker inflicted the final stab wound. This evidence would support an inference that Thacker gave the killing a "second thought" before inflicting the final wound. Fisher v. United States, 328 U.S. 463, 470, 90 L. Ed. 1382 , 66 S. Ct. 1318 (1946); accord, e.g., Frendak v. United States, 408 A.2d 364, 371 (D.C. 1979). That is all that is required; "the time involved may be as brief as a few seconds." Watson, supra, 501 A.2d at 793 (citation omitted).

In sum, we hold that the evidence before the jury, other than the testimony about the two phone calls, was sufficient to prove that Thacker killed Jefferson with premeditation and deliberation. We therefore need not address Thacker's claim that the trial court abused its discretion in admitting Lewis' testimony about the phone calls. *fn10

III

Thacker argues that the trial court erred in allowing the government to introduce into evidence live photographs of the crime scene which even the prosecutor characterized as "gruesome." As with most evidentiary rulings, we are dealing here with a matter entrusted to the sound discretion of the court. "Pictures of the decedent in a murder case are admissible, in the discretion of the trial court, so long as they have some probative value and are not intended solely to inflame the jury." Womack v. United States, 339 A.2d 37, 38 (D.C. 1975) (citation omitted). "Reversal is warranted only upon a showing of an abuse of that discretion." Pittman v. United States, 375 A.2d 16, 19 (D.C. 1977) (citations omitted).

Thacker argues that the photographs should have been excluded because they were cumulative of other evidence. That fact, however, does not make them inadmissible, so long as their probative value outweighs any prejudice resulting from their use. Hammond v. United States, 501 A.2d 796, 798 (D.C. 1985). Three of the photographs, government's exhibits 3, 4, and 7, show very little of the decedent's body; only his feet are visible. The fourth photograph, government's exhibit 11, shows a large bloodstain on the carpet where Jefferson fell after being fatally stabbed. These four photographs were introduced during Lewis' testimony to show that she was able to see what was occurring and to corroborate her testimony. Exhibit 3 was offered to show Lewis' position on the couch, from which she could hear Jefferson's end of the phone conversations. Exhibit 4 depicted the drug paraphernalia that Lewis and Jefferson had used earlier. Exhibits 7 and 11 showed the position of Jefferson's body in the apartment after he was stabbed the last time. All of these photographs were probative of what Lewis could see from the couch, and later from the kitchen, while Thacker was attacking Jefferson. None of them are revolting or unduly gruesome, and therefore none are especially prejudicial. We are satisfied that their probative value clearly outweighed any prejudice caused by their admission into evidence and that the trial court did not abuse its discretion by allowing the jury to see government's exhibits 3, 4, 7, and 11.

The fifth photograph, government's exhibit 30, is more troubling. The photograph is somewhat revolting, for it depicts the decomposed state of Jefferson's body; furthermore, it was cumulative evidence with minimal probative value. The government contends that exhibit 30 was offered to rebut Russell's testimony about Jefferson's clothing. It is true that Russell admitted, when confronted with the photograph on cross-examination, that she was mistaken about what Jefferson had been wearing (see note 5, (supra) ). It is also true, however, that the photograph was offered into evidence after Russell admitted her mistake.

On this point we are guided by the Russell opinion, in which Thacker's co-defendant challenged the admission of the same photograph. The government claimed in Russell, as it does here, that the photograph was introduced to refute Russell's testimony about what Jefferson was wearing. The court concluded that the photograph was cumulative in light of Russell's admission that she was mistaken about Jefferson's clothing, but that any error in admitting the photograph was harmless because the other evidence against Russell was so strong. Russell, supra, 586 A.2d at 700. ...


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