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September 23, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Ronald P. Wertheim, Trial Judge)

Before Terry and Farrell, Associate Judges, and Belson, Senior Judge. Opinion for the court by Associate Judge Terry. Dissenting opinion by Associate Judge Farrell.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: Appellant Wilkes was convicted of armed second-degree murder and related offenses. *fn1 At trial he raised an insanity defense and relied primarily on the expert testimony of a psychiatrist. To impeach that testimony, the government cross-examined the psychiatrist about two statements which the police had taken from Wilkes in violation of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Later, in rebuttal, the government introduced the statements through the testimony of two police officers. The government also presented three experts of its own, two psychiatrists and a psychologist, whose testimony was based in part on those statements and the Conclusions they drew from them. Wilkes argues that the court erred in allowing the jury to learn of his statements in this manner, citing James v. Illinois, 493 U.S. 307, 107 L. Ed. 2d 676, 110 S. Ct. 648 (1990). We conclude that James is distinguishable and does not control this case. We hold, following a consistent line of Supreme Court cases beginning with Walder v. United States, 347 U.S. 62, 98 L. Ed. 503, 74 S. Ct. 354 (1954), and extending through Michigan v. Harvey, 494 U.S. 344, 108 L. Ed. 2d 293, 110 S. Ct. 1176 (1990), that evidence of the statements was properly heard by the jury. Accordingly, we affirm the convictions.


Thomas Wilkes started dating Johnetta McLean in late 1988. By April 1989, however, problems in the relationship had resulted in at least two angry confrontations between Wilkes and McLean at the office of McLean's employer. Then, in early May, Wilkes apparently began stalking McLean.

On May 19, 1989, Wilkes followed McLean and a co-worker, Michelle Williams, after they left work and were driving home at about 5:00 p.m. Wilkes pulled alongside McLean's car, which was traveling south on the Anacostia Freeway (Interstate Route 295), and engaged in a brief conversation with her. When McLean asked Wilkes if he would be following her all day, he replied, "No." Wilkes then positioned his car *fn2 behind McLean's car and rear-ended her three or four times, forcing McLean's car off the road and into a ditch in the median strip. Wilkes stopped his car, walked over to McLean's car, and fired one or two shots toward it. McLean's car suddenly started and moved backwards out of the ditch and across the road, then went up an embankment, hit a fence, and became lodged against a tree. Wilkes came across the road to McLean's car, then raised his arm and fired four more shots at the driver's window. Three of those shots struck McLean. Wilkes then turned to fire at Williams. She tried to get down on the floor, but before she could do so, Wilkes fired once at her. The bullet struck her spinal cord, causing instant paralysis. After firing another shot in Williams' direction, he walked back across the road to his car and drove off. McLean died from the gunshot wounds to her head and chest. Williams survived, permanently paralyzed from the chest down.

Williams identified Wilkes to the police by name as the assailant. The next day Wilkes was arrested on a warrant by Metropolitan Police Sergeant Bobby Craig and other officers. Sergeant Craig briefly questioned him in the course of executing the warrant, but without advising him of his Miranda rights. Moments after entering Wilkes' apartment, Craig asked him where the murder weapon was, and Wilkes replied that he had "thrown it in a dumpster out in Virginia on Duke Street near to where he had parked the car." Wilkes was taken immediately to police headquarters, where Detective Robert Vacin of the Homicide Squad questioned him for approximately an hour before giving him any Miranda warnings. During this initial portion of his interrogation Wilkes described his relationship with Johnetta McLean. He also said "I did it" to Detective Vacin three times during this period, but he never explained what "it" was.

When Wilkes began to relate the events of the previous day, Detective Vacin interrupted and read him his Miranda rights. Wilkes did not then formally waive those rights. When he asked what crime he was being charged with, Vacin replied that the crime was murder, and Wilkes became upset. Detective Vacin testified that, on the basis of Wilkes' conduct at the time, "it wasn't clear in my mind that he was waiving his rights." The interview nevertheless continued for approximately one more hour. During this second portion of the interrogation Wilkes told Vacin that he had disposed of the gun in a dumpster or trash can outside a Peoples Drug Store in Alexandria, Virginia. *fn3 Detective Vacin then asked Wilkes again whether he was willing to waive his Miranda rights, but Wilkes expressly declined to do so and said that he wanted an attorney present before he would answer any more questions. Vacin then ceased the interrogation.

After a pre-trial hearing on the admissibility of Wilkes' statements to Sergeant Craig and Detective Vacin, the court concluded that the statements, although voluntarily made, had been taken in violation of Miranda and therefore could not be used in the government's case in chief. The court also ruled, however, that since the statements were voluntary, they would be "admissible for impeachment purposes on rebuttal" if Wilkes testified inconsistently with them.

At trial Wilkes relied on the defense of insanity. *fn4 The thrust of his defense was that he was afflicted with a mental disorder which resulted in blackouts and severe headaches, that he suffered from this disorder at the time of the shooting, that it caused him to have no recollection whatever of the crimes, and that he was therefore not criminally responsible for his conduct. Defense counsel called several family members and friends to testify about such blackout episodes in Wilkes' past. *fn5

Also testifying was Michael Washington, a longtime friend of Wilkes. Washington said that Wilkes called him between 7:00 and 8:00 p.m. on May 19 at a bowling alley in Virginia where Washington played as a member of a bowling league. Wilkes told Washington that he was in Virginia but did not know how he had gotten there. Later that same night, at approximately 1:00 a.m., Wilkes telephoned his sister, Faye Wilkes. She testified that her brother did not sound like himself and that at first he seemed confused and did not recognize her voice.

The defense also relied on the expert testimony of Dr. George Saiger, a psychiatrist, who opined that Wilkes suffered from a "dissociative disorder" on May 19, 1989. *fn6 Dr. Saiger explained that this rare disorder involves a "disturbance in the usual integrated functioning of the psychological processes of memory, identity, and consciousness." As a result of this mental disease, the doctor concluded, Wilkes "was in a different state of awareness such that he was not able to either control his behavior or realize all the implications of what he was doing, including the illegality." *fn7

The prosecutor sought permission to cross-examine Dr. Saiger about the statements Wilkes gave to the police after his arrest because the doctor had testified that his opinion was based in part upon Wilkes' statements to him that he lacked any memory of the events surrounding the charged offenses. *fn8 Over defense counsel's objection, *fn9 the court allowed the prosecutor to use the statements for the limited purpose of asking Dr. Saiger, in the form of a hypothetical question, whether his diagnosis would be different "if the defendant told someone, police officers, the day after the murder that he dumped the- car and gun in Virginia and that he then came back in the city, knew the police were looking for him." The court allowed the hypothetical question with the understanding that all facts assumed in it would be presented in the government's rebuttal case.

Dr. Saiger then testified that he had based his diagnosis of Wilkes' condition "in large part" on Wilkes' statement to him that he had no memory of the shootings. The significance of this information with respect to the diagnosis is not in dispute. Dr. Saiger readily acknowledged that if Wilkes "did remember [the events constituting the offenses] and lied when he said he didn't, the diagnosis would definitely be re-considered."

The government's rebuttal case consisted primarily of expert testimony about Wilkes' mental condition as well as testimony from Sergeant Craig and Detective Vacin about the previously excluded statements. There were three expert witnesses, Drs. Kenneth Rogers and Neil Blumberg, both psychiatrists, and Dr. Mitchell Hugonnet, a clinical psychologist. All three unanimously concluded that Wilkes was not suffering from a mental disorder at the time of the crimes. *fn10 Each doctor considered Wilkes' statements to Sergeant Craig and Detective Vacin, among other things, in arriving at that Conclusion. The court gave a limiting instruction after the testimony of each of the two police officers. For example, after Sergeant Craig's testimony, the court told the jury:

Statements of the defendant to the doctor may be discredited or impeached by showing that the defendant has previously made statements which are inconsistent with what he told the doctor.

The prior statement is admitted into evidence solely for your consideration in evaluating the credibility of the defendant's statement to the doctor and the reliability of the opinion which the doctor based in part on those statements.

The defendant's statement to the detective is not considered as evidence of the defendant's guilt of the offense for which he is charged. You may consider it -- you may not consider it, rather, as establishing the truth of any facts contained in it, and you must not draw any inference of guilt against the defendant just from his statements.

Another officer, Detective Gary Queen, testified about the search of the area near the drug store and the recovery of the car but not the gun.

Before preparing final jury instructions, the court decided to address once again the admissibility of Wilkes' statements to Sergeant Craig and Detective Vacin. After hearing argument by counsel on this question, the court reiterated its earlier ruling that the statements could be used to rebut Dr. Saiger's diagnosis. The court explained its decision, in part, as follows:

The admission of this evidence provides valuable aid to the jury in assessing the weight of the doctors' opinions which is important to the truth finding process. It is certainly only speculative to suggest that impermissible police conduct would be encouraged by allowing the testimony in.

So my Conclusion is that this evidence is admissible by analogy to Harris v. New York, but it is not the impeaching evidence as such, that is, it is not a matter of defendant's credibility, but it is a matter solely for the jury to take into account in ...

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