Appeals from the Superior Court of the District of Columbia. (Hon. Gladys Kessler, Trial Judge).
Before Wagner, Chief Judge,* and Terry and Schwelb, Associate Judges. Opinion for the court by Associate Judge Terry. Concurring opinion by Associate Judge Schwelb.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge: Appellant appeals from his conviction of burglary in the first degree *fn1 and destruction of property *fn2 and from the denial of a motion to vacate his sentence. He argues that there was insufficient evidence to convict him of burglary; that he was erroneously barred from presenting the testimony of certain witnesses; that the court should have given a special unanimity instruction; that the prosecutor made improper comments in his closing argument; and finally, that he was denied the effective assistance of counsel at trial. We affirm both the judgment of conviction and the denial of the motion to vacate the sentence.
At approximately 11:00 p.m. on Monday, November 23, 1987, Paula Shaw Bowman, appellant's estranged wife, *fn3 was in her home, watching a football game on television with her thirteen-year-old daughter Pamela, her two-year-old son Paul, and her friend Edward Cosey, a Metropolitan Police officer, when appellant appeared at her door. Mrs. Bowman told appellant that she would not let him in and reminded him that he was supposed to stay away from her house. *fn4 Appellant began pounding on the door, swearing and telling Mrs. Bowman that he was coming in regardless of her wishes.
Worried and frightened, Mrs. Bowman told her daughter Pamela to call the police. When Pamela reported that the telephone line was dead, *fn5 Mrs. Bowman told her to start banging on the wall and also began to pound on the wall herself. This was a signal to Faye Diggs Wade -- Mrs. Bowman's mother, who lived in an attached row house next door -- that there was trouble and that she should call the police. Hearing the pounding, appellant yelled through the door, "Y'all better stop knocking on that goddam wall because if anybody comes out of that house . . . then they gonna get hurt too, so y'all better stop knocking on that goddam wall."
Appellant then climbed up on the front porch railing, kicked in the living room window, and "rolled through it at the same time" into the house. Upon seeing Officer Cosey, who was off duty and therefore not in uniform, appellant twice asked, "Who is this mother-fucker?" Mrs. Bowman told Cosey, "You don't have to answer. That's none of his business." In response, appellant pushed Mrs. Bowman aside and asked Cosey directly, "Now what are you going to do, mother-fucker?" Cosey and appellant scuffled for a moment, but Cosey soon gained the upper hand, and the fight stopped.
Appellant then went back outside after picking up a beer bottle, taking Mrs. Bowman's keys and telling her that she should meet him at his mother's house in ten minutes. If she did not, appellant warned, she was "going to get hurt." Appellant also said to Officer Cosey, "If I find out who you are, you going to get hurt too." As appellant left the house, he encountered Mrs. Wade on the porch. With the sound of police sirens drawing nearer, appellant told her, "If it was you that called the police, you're dead too." Appellant then fled on foot and was arrested on a warrant some time later.
The government presented the testimony of five witnesses, four of whom were present when appellant broke into the house: Mrs. Bowman, her daughter Pamela, Officer Cosey, and Mrs. Wade. Appellant presented no defense. The jury found appellant guilty of burglary and destruction of property. After he was sentenced and noted an appeal, he filed a motion under D.C. Code § 23-110 (1989) to vacate his conviction on the ground that his trial counsel had rendered ineffective assistance. After a hearing, the trial court denied the motion, orally stating its findings of fact and Conclusions of law. Appellant noted another appeal, which was consolidated with the appeal from his conviction.
To obtain a conviction under our burglary statute, the government must prove "that the defendant entered the premises having already formed an intent to commit a crime therein." *fn6 Warrick v. United States, 528 A.2d 438, 442 (D.C. 1987) (footnote omitted). Such intent is rarely capable of direct proof. "The requisite intent ... is a state of mind particular to the accused, and unless such intent is admitted, it must be shown by circumstantial evidence." Massey v. United States, 320 A.2d 296, 299 (D.C. 1974). Thus unauthorized presence, by itself, is not sufficient to prove a burglary; the government must also show "other circumstances" that "might lead reasonable people, based upon their common experience, to conclude beyond a reasonable doubt that appellant intended to commit some crime upon the premises." Shelton v. United States, 505 A.2d 767, 770 (D.C. 1986) (footnote omitted).
The indictment in this case alleged that appellant entered the dwelling of Paula Shaw Bowman "with intent to commit an assault." In Warrick, supra, we reversed a conviction of armed first-degree burglary with intent to commit an assault because the government established only that the defendant had entered a home armed with a dangerous weapon, a showing that, without more, was insufficient to support a burglary conviction. Citing Warrick, appellant argues that there was no evidence to permit the jury to infer that he intended to commit an assault. *fn7 At most, he asserts, the evidence suggests a "pattern of verbal harassment only, with no evidence of prior assaults or intent to assault upon entering premises."
We cannot agree. First of all, the fact that appellant actually committed an assault very soon after he was inside the house is strong circumstantial evidence that he intended to commit an assault at the time he entered. Lee v. United States, 37 App. D.C. 442, 446 (1911) (when defendant was charged with housebreaking with intent to commit larceny, "the proof of this larceny was the best evidence that his unlawful entry of the house was with that particular intent"). Second, Mrs. Bowman testified that when appellant appeared at her door and demanded to be let in, she started banging on the wall to alert her mother to call the police. This prompted appellant to yell through the door, "Y'all better stop knocking on that goddam wall because if anybody comes out of that house [ i.e., the mother's house] ... then they gonna get hurt too, so y'all better stop knocking on that goddam wall." His statement that "they gonna get hurt too " would support an inference that appellant intended to "hurt" not only whoever might come out of the mother's house, but those inside Mrs. Bowman's house as well. This evidence, combined with the violent manner of his entry, his generally aggressive behavior both before and after he entered, and his failure to exhibit any other purpose for being in the house, together with what the Shelton case referred to as "other circumstances," *fn8 would permit a jury to find that when appellant entered Mrs. Bowman's home by force and without authority, he did so with the intent to commit an assault. See Johnson v. United States, 613 A.2d 888, 899-900 (D.C. 1992). Indeed, the facts in this case are stronger in some respects than those in Johnson. In this case, unlike Johnson, appellant knew that the house was occupied when he entered it. Moreover, there was evidence of threats by appellant while he was trying to enter the house through the door, evidence not present in Johnson. See id. at 904 (Ferren, J., Dissenting). For these reasons we hold that appellant's sufficiency challenge is without merit.
Appellant contends that the trial court erroneously excluded certain testimony which, he claims, would have established that he went to Mrs. Bowman's house with a benign intent. The trial court rejected appellant's proffer for several reasons: first, it was not relevant; second, it did not establish his intent; and third, unless appellant himself were to testify, it was inadmissible hearsay.
Our review of the trial court's determination of relevance is highly deferential; we will disturb it only upon a showing of an abuse of discretion. See, e.g., 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); Wooten v. United States, 285 A.2d 308 (D.C. 1971). The issue at trial was not appellant's state of mind before he went to Mrs. Bowman's house, but his state of mind at the moment he hurled himself through her living room window. *fn9 Counsel's proffer was that a witness would testify that appellant had asked her "to advance him some money so that he could buy Pampers or take the money to his wife." The proffer was rather vague as to the date of this conversation, a fact that would support the trial court's decision to exclude it. But even assuming that it took place on the very date of the offense, and assuming further that it was some evidence of appellant's state of mind at the time he made the statement (in which case it would not be excludable as hearsay, see FED. R. EVID. 803 (3)), the proffer could not establish his state of mind when he broke into the home of his estranged wife -- by kicking in the window -- several hours later. See Jackson v. Young, 546 A.2d 1009, 1011 (D.C. 1988). Moreover, the alleged conversation had minimal probative value when weighed against the direct evidence of the manner of his entry and his conduct inside Mrs. Bowman's living room. In these circumstances we find no abuse of discretion in the trial court's refusal to admit the proffered testimony.
Appellant argues that the trial court's refusal to give a special unanimity instruction violated his Sixth Amendment right to a trial by jury. At trial defense counsel asked for an instruction that the jury must unanimously find that appellant intended to assault a particular person. Counsel sought to foreclose the possibility that appellant might be convicted of first-degree burglary if, for example, six jurors found that he intended to assault Mrs. Bowman and the other six found that he intended to assault Officer Cosey. The government's position, with which the trial court agreed, was ...