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December 18, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. George Herbert Goodrich, Trial Judge)

Before Steadman and Wagner, Associate Judges, and Mack, Senior Judge. Opinion for the court by Associate Judge Wagner. Concurring opinion by Associate Judge Steadman.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge: On October 28, 1987, appellant, Raymond Harris, shot Charles Langley in the abdomen in front of the home where both men lived. Appellant was convicted after a jury trial of assault with intent to kill while armed *fn1 and carrying a pistol without a license. *fn2 At trial, appellant contended that he shot Langley in self-defense. On appeal, appellant argues that the trial court erred in precluding him from cross-examining the complaining witness about, or offering extrinsic evidence of, two prior violent acts allegedly committed by Langley. Appellant also argues for reversal on the ground that the prosecutor improperly used his prior convictions to show that he was a violent person, likely to commit assaults. We find no abuse of discretion in the trial court's decision to exclude the evidence. On appellant's second claim of error, we find no grounds for reversal under the plain error standard.


At the time of the shooting, appellant and the complaining witness, Charles Langley, were residing in the same household with Langley's mother, stepfather, sisters, brothers, nephews and nieces. Appellant was the father of two children by one of Langley's sisters, Phyllis Hinton. The complaining witness testified that on the evening of the shooting he returned home about 9:00 p.m. after visiting his girlfriend, Ms. Alice White, and their two children. At the time, Langley complained to appellant that appellant's teenaged children were keeping him awake at night by running in and out of the house. Both men raised their voices during the Discussion, and Langley's mother came downstairs to intervene. Langley testified that he suggested to appellant that they finish the conversation outside to keep from disturbing his mother. Appellant walked towards the den, and Langley thought that the conversation had ended. Langley went to the living room to get a cigarette, found he had none, grabbed his jacket, and left by the "front door" (on the side of the house) with the intention of going to the store for cigarettes. As Langley stepped out of the door, he heard appellant say, "Here I am. I'm out here, now." Langley turned to see what appellant was saying, and appellant shot him in his lower abdomen. As Langley turned to go back into the house, he heard one more gunshot. *fn3 Langley testified that he never threatened appellant and that he had no weapon or any other object in his hands. He also testified that he knew of no reason for appellant to shoot him.

Appellant's version of the events differed in significant respects. Appellant testified that he heard Langley arguing with Phyllis Hinton about Toya, the daughter of appellant and Hinton. According to appellant, he tried to talk to Langley, who was cursing loudly and threatening to discipline Toya. Langley's mother came downstairs and asked Langley to stop cursing, but he continued to shout and began to threaten appellant after she went back upstairs. Langley threatened appellant's daughter, who was across the street at a neighbor's at the time, and when appellant intervened, threatened him. Langley's mother came back a second time and requested appellant to leave because it might calm Langley down.

Appellant left by the back door to reach his truck which was parked in the backyard. Appellant saw Langley standing near the front door and decided to cross the street to warn Toya not to come home until Langley calmed down. Before appellant could do so, he heard a noise behind him, turned and saw his stepson, Anthony, with a gun. Appellant grabbed the weapon from Anthony and immediately saw Langley standing on the porch, looking fierce and holding a large object (either a jack or a battery) above his head. *fn4 Appellant testified that he shot Langley with the gun he had taken from Anthony because he was afraid that Langley would strike him with the large object. After the shooting, appellant fled in his truck.

Appellant also testified that he wanted to warn his daughter because Langley, who had shot his own wife and burned down his own mother's house, was dangerous. These incidents are alleged to have occurred in 1973 and 1976, respectively. In response to questioning by the prosecutor, appellant admitted that he knew that Langley was found not guilty of the arson and that the shooting had not been prosecuted. The trial court denied appellant's pretrial motion to cross-examine the complaining witness or to introduce at trial extrinsic evidence concerning these two prior incidents. *fn5 Appellant argues that this ruling was reversible error.


The trial court has broad discretion "to determine the substance, form, and quantum of evidence which is to be presented to a jury." Johnson v. United States, 452 A.2d 959, 960 (D.C. 1982); Hawkins v. United States, 461 A.2d 1025, 1033 (D.C. 1983), cert. denied, 464 U.S. 1052, 79 L. Ed. 2d 193, 104 S. Ct. 734 (1984). Even if satisfied that the evidence is relevant and admissible under applicable evidentiary rules, the trial court must still determine whether the probative value of the evidence outweighs any unduly prejudicial effect when weighed against competing interests. Johnson, 452 A.2d at 960; Hawkins, 461 A.2d at 1033. Our scope of review of the trial court's ruling excluding evidence is whether the trial court abused its discretion. Johnson, 452 A.2d at 960.

Before considering whether the trial court abused its discretion in limiting the extrinsic evidence of the victim's prior bad acts, we turn to the question of admissibility of the evidence. There is no dispute that to support a self-defense claim, the accused may show prior acts of violence committed by the victim about which the accused knew. Matter of M.W.G., 427 A.2d 440, 443 (D.C. 1981); United States v. Akers, 374 A.2d 874, 877 (D.C. 1977). Such evidence is relevant to the reasonableness of the accused's fear of the victim. Cooper v. United States, 353 A.2d 696, 702 (D.C. 1975); King v. United States, 177 A.2d 912, 913 (D.C. 1962); United States v. Burks, 152 U.S. App. D.C. 284, 286-87 & n.5, 470 f.2d 432 & n.5 (1972). However, appellant argues that such evidence is also admissible on the issue of who was the first aggressor in an assault case to support the claim of self-defense.

The rule in this jurisdiction is that only in homicide cases may prior violent acts of the victim be introduced as evidence to prove that the victim was the first aggressor. Akers, supra, 374 A.2d at 877; see also McBride v. United States, 441 A.2d 644, 652-53 (D.C. 1982). This is an exception to the general rule, which precludes evidence of any prior wrongs to prove that one acted in conformity with earlier conduct on a later occasion, carved out in recognition of the absence of the testimony of the homicide victim at trial. Akers, 374 A.2d at 877. Appellant argues that the Akers rule on the issue is extracted from dicta, and therefore, should be rejected. We do not regard as dicta the Akers holding on the question. Appellants were charged in Akers with assault on three police officers. Although the ultimate issue in Akers was whether appellants were entitled to pretrial discovery under Brady *fn6 or Super. Ct. Crim. R. 16 (b) of the police officers' personnel records reflecting their prior assaultive or violent conduct, one issue essential to the court's ruling was whether the documents sought were material to appellants' defense. The basis for the appellants' claim of materiality under Super. Ct. Crim. R. 16 was that such evidence would support their self-defense claims by showing the officers' violent character and hence, the likelihood that the officers were the first aggressors. Akers, 374 A.2d at 877-78. The trial court granted the requested discovery on that theory. However, this court concluded that the trial court erred in its ruling because evidence of past, unknown specific violent acts by the complainant are not admissible at trial in a non-homicide case. Id. *fn7 Thus, the holding in Akers limiting the use of evidence of specific prior acts of violence by the victim on the first aggressor issue to homicide cases is not dicta, and we are bound to follow it. Id. at 877; see also King, supra, 177 A.2d at 913 (in assault cases, testimony by appellant of complainant's reputation for violence admissible on self-defense claim to show appellant's reasonable apprehension of fear). Therefore, the trial court did not err in refusing to admit the proffered evidence on the first aggressor issue here.

However, evidence of the victim's prior bad acts, which were known to appellant, were admissible in this case on the issue of the reasonableness of appellant's apprehension of danger at the time of the shooting, as the trial court properly concluded. See Cooper, supra, 353 A.2d at 702; see also King, supra, 177 A.2d at 913. Although appellant was permitted to testify about the two prior violent acts allegedly committed by the complaining witness, he argues that the trial court erred in refusing to allow him to offer extrinsic evidence and to cross-examine complainant about them. We find no abuse of discretion in the trial court's ruling.

Extrinsic proof that the complainant did in fact commit prior violent acts "serves to corroborate the defendant's testimony as to what he heard, and is therefore relevant to the question whether the defendant did, in fact, fear injury. . . . " Burks, supra, 152 U.S. App. D.C. at 287 n.5, 470 F.2d at 435 n.5. Such proof is therefore probative and admissible on the issue of the reasonableness of the fear of the defendant who raises a self-defense claim. Id. Nevertheless, the trial court may still exercise its discretion to limit the "substance, form, and quantum of evidence" presented on the issue. Johnson, supra, 452 A.2d at 960; Hawkins, supra, 461 A.2d at 1033. The court may exclude such evidence, even when relevant, if its probative value is outweighed ...

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