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05/13/93 GEORGE MARSHALL JONES v. UNITED STATES

May 13, 1993

GEORGE MARSHALL JONES, APPELLANT
v.
UNITED STATES APPELLEE; JAMES E. BUTLER, APPELLANT V. UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Warren R. King, Trial Judge)

Before Rogers, Chief Judge, and Terry and Sullivan, Associate Judges.

The opinion of the court was delivered by: Sullivan

SULLIVAN, Associate Judge : Appellants, James E. Butler and George Marshall Jones, were each charged in indictments with assault with intent to kill while armed in violation of D.C. Code §§ 22-501, -3202 (1989). A jury convicted Butler of the indicted offense and convicted Jones of the lesser-included offense of assault with a dangerous weapon in violation of D.C. Code § 22-502 (1989). In these consolidated appeals, appellants raise two principal issues. First, we consider whether the trial court abused its discretion by admitting excessive evidence and allowing argument by government counsel concerning the nature of appellants' homosexual relationship with each other and appellant Butler's effeminate characteristics. We also consider whether the evidence was sufficient to sustain appellant Jones's conviction for assault with a dangerous weapon under an aiding and abetting theory.

We hold that the trial court abused its discretion by allowing excessive evidence of appellants' homosexual relationship and appellant Butler's effeminate characteristics. We also hold that the evidence as to Jones was insufficient to sustain a conviction for assault with a dangerous weapon under an aiding and abetting theory. Accordingly, we reverse Butler's conviction and remand for a new trial. We also reverse Jones's conviction and remand for the entry of a judgment of acquittal, since reversal of his conviction on the additional ground of insufficient evidence is a bar to a new trial. *fn1 See Burks v. United States, 437 U.S. 1, 16, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978).

I.

The government's evidence *fn2 showed that Christine Filosa, a volunteer kindergarten teacher, was stabbed in the chest with a serrated-edged steak knife near the intersection of Park Road and Sixteenth Street, Northwest, at approximately 1:45 p.m. on May 9, 1988. The stabbing occurred while Ms. Filosa was leading a group of twenty-two kindergartners from the Sacred Heart Parish School to a nearby playground located a block and a half away on Sixteenth Street and adjacent to the Sacred Heart Church. At the time of the stabbing, Ms. Filosa was holding the hands of two children in the front of the group. She was accompanied by her aide, Cynthia Barnes, who was at the rear of the double line of children.

As the group approached the intersection, Ms. Filosa observed a tall man, later identified as Jones, and a short man, later identified as Butler, standing about a foot apart on the corner on the south side of Park Road. Ms. Filosa observed that Butler was looking up and talking animatedly to Jones, who was looking down and listening. She also observed that the two men were looking in her direction.

When Ms. Filosa got close to the corner on the north side of Park Road, she noticed Jones walking toward her from her right side in a slouched, nonchalant manner. Ms. Filosa stepped back to clear a path for Jones to pass in front of her. Jones neither spoke nor gestured as he brushed several inches in front of her without touching her. Ms. Filosa testified that she wasn't frightened of Jones, but that she experienced "a twinge of concern" when he "came so close to " and "almost a sense of relief when he continued [on his way up Sixteenth Street]." She testified that she "didn't bother to continue looking at him" once he had passed her.

After Jones had passed Ms. Filosa, she turned around to her left to check on the children. While she was still turned around, she felt a hard blow to her chest. She testified on direct examination that she turned back "instinctively" and saw Butler's face with a "very evil, hateful . . . satisfied expression" on it about six inches from her. Without uttering a word or making any overt gesture, Butler pulled the knife out of her chest, tucked it in his jacket, and walked away alone in a "very bouncy . . . feminine" manner *fn3 in the same direction as Jones had walked on Sixteenth Street.

By then, Jones had turned around and was coming back down Sixteenth Street toward Butler. One of the children testified that she saw Butler stop and drop the knife in a mailbox, and a police officer testified that he later recovered the knife from the mailbox. Ms. Barnes testified that she watched the two men "join up" and walk away together and that she observed that both were "laughing and talking."

II.

Appellants argue that the trial court abused its discretion by admitting excessive evidence of their homosexual relationship and Butler's effeminate characteristics and by allowing a barrage of related closing argument by the prosecution. They contend that the evidence and argument were unduly prejudicial and deprived them of their constitutional right to a fair trial.

It is well-settled that evidence is relevant if it makes the existence of a contested fact that is of consequence to the determination of the action more or less probable than it would be without that evidence. See Punch v. United States, 377 A.2d 1353, 1358 (D.C. 1977), cert. denied, 435 U.S. 955, 55 L. Ed. 2d 806, 98 S. Ct. 1586 (1978) (citing United States v. Carter, 173 U.S. App. D.C. 54, 73, 522 F.2d 666, 685 (1975)). Although relevant, evidence may be excluded if its potential for prejudicial misuse by the jury substantially outweighs its probative value. See Punch, supra, 377 A.2d at 1358, and cases cited therein. In exercising its discretion, the trial court must weigh the probative value of the evidence in question against the risk of unfair prejudice. See id. Once a trial court has performed the requisite balancing and exercised its judgment, this court will disturb its ruling only upon a showing of abuse of discretion. See id.

"Evidence of homosexuality has an enormous proclivity for humiliation and degradation" and, thus, poses a high risk of prejudicial impact on a jury. Tinker v. United States, 135 U.S. App. D.C. 125, 127, 417 F.2d 542, 544, cert. denied, 396 U.S. 864, 24 L. Ed. 2d 118, 90 S. Ct. 141 (1969). *fn4 This is especially true where evidence of homosexuality is introduced against a criminal defendant who has a constitutional right to a fair trial. See United States v. Provoo, 215 F.2d 531, 537 (2d Cir. 1954) (evidence of defendant's homosexuality elicited by government during cross-examination was inadmissible, because "the sole purpose and effect of this examination was to humiliate and degrade the defendant, and increase the probability that he would be convicted not for the crime charged, but for his . . . unsavory character").

The record reveals that appellants moved for a mistrial following the government's opening statement, in which the prosecutor, without prior notice to opposing counsel or judicial approval, told the jury that the evidence would show that the appellants were "intimate homosexual friends" who called each other "husband" and "wife baby" and that Butler went around "telling everybody that he was better than any woman for Jones." The trial court denied appellants' motion with a caveat. The court ruled that appellants' homosexual relationship, although irrelevant in and of itself, was relevant to show a unique association between the two defendants, which provided a basis for their being together at the time of the stabbing of Ms. Filosa, and to show the identity of Ms. Filosa's assailant. The court stated:

Again, . . . it seems to me based on what I have heard previously that his sexual orientation itself is irrelevant. The fact that it plays a role in the relationship between the two, the fact that it plays a role in the identification, it seems to me is relevant. . . .

The court admonished the government's counsel, however, for not having at least "forewarned everyone" and directed him to "tone it down." The court also cautioned:

It's one thing for you to say, I know Mr. Butler and Mr. Jones were lovers. I have no problem with them saying that. It puts them in the same location and also puts the relationship of the two together. I don't like the idea of emphasizing over and over again the fact they are homosexual. Maybe some members of the jury might be offended by that and hold it against the defendants. . . .

[Emphasis added.]

Prior to proceeding to hear testimony from the first witness, the trial court offered several times to give the jury a limiting instruction, but neither appellant asked for an instruction. Such an instruction, however, may have served only to emphasize the impropriety of the statements and thereby exacerbate their prejudicial impact. See, e.g., Van Ness v. United States, 568 A.2d 1079, 1083 (D.C. 1990) (curative instruction would accentuate any improper influence drawn from prosecutor's argument); United States v. Miranda, 593 F.2d 590, 596 n.7 (5th Cir. 1979) (curative instruction in response to improper prosecutorial argument might only enhance the prejudicial impact and thus might in certain cases be inappropriate).

The prosecutor ignored the court's warning to "tone it down" and, to the contrary, proceeded to exploit every opportunity to remind the jury of appellants' homosexual relationship and, in particular, Butler's effeminate characteristics. In total, the trial transcript contains 37 such references in the testimony elicited from witnesses and an additional 31 such references in the government's closing and rebuttal arguments. *fn5 Although defense counsel objected to only a few of the excessive references to appellants' homosexuality and Butler's effeminate characteristics elicited by the prosecutor following the court's ruling on the mistrial motion, in our view it was unnecessary for defense counsel to raise any further objections. See Wilkins v. United States, 582 A.2d 939, 942 n.7 (D.C. 1990) ("An objection to evidence, once made and overruled, need not be renewed to the same type of evidence subsequently received.").

The only eyewitness testimony in the record that the person who assaulted Ms. Filosa was effeminate is the complaining witness's testimony that he walked away in a "very bouncy . . . feminine" manner, which she said "confused as to whether . . . was a man or woman." No other lay witness testified that Ms. Filosa described Butler that way. Moreover, no witness testified that the person who assaulted Ms. Filosa appeared in any way to be homosexual. Yet, based on that sole reference in Ms. Filosa's testimony, the government introduced the following excessive evidence of both appellants' homosexuality and Butler's effeminate characteristics:

Detective Roger Simpson was questioned as follows:

Q. Now, sir, was there anything about -- during your talking with him -- during the time you talked with him -- in all about how long would you say you spent with Mr. Butler in your presence, talking with him throughout the investigation?

A. Approximately an hour.

Q. And during that period of time, was there anything noteworthy about his mannerisms, and his gestures, and his voice inflections?

A. He had effeminant mannerisms, exaggerated state of femininity into his speaking.

Lorena Harris, the police officer who arrested Butler on an unrelated charge the day after the stabbing of Ms. Filosa occurred, testified that, on the day of the arrest, Butler had been drinking; was wearing his hair dyed reddish brown in a tail on the back of his head; was wearing a tight jacket; and was switching his hips as he walked. The prosecutor then asked: "And did he appear to be homosexual to you at the time[?]" Defense counsel objected, and the objection was sustained on the ground that the question was leading. The prosecutor thereafter elicited testimony from Officer Harris that at the time of the arrest, Butler spoke "with a light whisper, kind of a girlish voice." The officer described Butler's hand gestures in response to the prosecutor's direct question as "very feminine and nothing at all masculine about him."

Lena Ramos and Marco Vasquez, who had observed appellants prior to the stabbing, were called as witnesses by the government. Ms. Ramos was asked about Butler's mannerisms:

Q. Now, let me ask you, was there anything about his manner when he was approaching you, the way he spoke, the way he walked or the way he gestured with his hand which was ...


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