APPEAL FROM THE SUPERIOR COURT, TRUMAN A. MORRISON, III, J.
Before Wagner, Chief Judge, and Reid, Associate Judge, and
Kern, Senior Judge.
The opinion of the court was delivered by: Per Curiam:
After a jury trial, Appellant John H. Wilson was convicted of one count of second degree murder while armed, in violation of D.C.Code §§ 22-2403, -3202 (1996). *fn1 He filed a timely appeal. He contends that the trial court erred by giving a jury instruction on second degree murder as a lesser included offense where the government tried the matter [711 A2d Page 76]
as a first degree murder case and where "the facts . . . demonstrated that there was no rational basis for a finding of second-degree murder. . . ." He also argues he should have been allowed to introduce third-party culpability evidence. We affirm.
On September 13, 1994, a United States Park Service employee found the nude body of Elise Clyburn lying face down in blood and splattered brain matter, in a wooded area of Rock Creek Park behind a parking lot at Grove 10. There was evidence that she had been stabbed twice in the face with such force as to penetrate her skull and brain. In addition, she suffered great trauma to the back of her head consisting of eleven lacerations between four and eight inches long which severed her scalp from her skull. There were several abrasions and lacerations to the inner lining of her rectum. Semen in her vaginal area matched Wilson's DNA profile. Some of Ms. Clyburn's clothes, which were soaked in blood, were strewn nearby in the grass. A "metal pipe fitting" and piece of wood covered in blood were lying three feet from her head.
The government established that on the night of Ms. Clyburn's murder, Wilson and Ms. Clyburn had been arguing. *fn2 Wilson was seen leading Ms. Clyburn out of the apartment, and was heard stating to her, "You will find out when you get dead" in response to a question she asked. Wilson was an extremely jealous boyfriend who monitored Ms. Clyburn's calls, destroyed her phone book, and became very angry when she was friendly with other men. It was also shown that an intimate relationship between Wilson and Ms. Clyburn had ceased due to Ms. Clyburn's feeling that Wilson was sleeping with other women. *fn2
A friend, Georgia Kusi, testified that hours before the murder, she saw Wilson inside an apartment building on Lamont Street, "in a rage" and yelling loudly at another man. Ms. Kusi saw Ms. Clyburn sitting alone in Wilson's car, and described her as "not herself." When Wilson returned to the apartment on Euclid Street later that night, Darlene Adams claimed that Ms. Clyburn was not with him, and that he asked her to wash out his blood stained shirt. Although boots he had worn that night contained blood, it matched neither his DNA profile nor that of Ms. Clyburn. Wilson said he had been in a fight with a deaf man earlier that evening, and warned Ms. Adams not to talk to any police officers or lawyers.
Two weeks before the murder took place, Ms. Clyburn phoned the police in order to have Wilson and Ms. Adams removed from the apartment. When the police officer arrived, Wilson was heard calling Ms. Clyburn names and had to be restrained. Mr. Recee Cain, an associate of Wilson, testified that one day when he was riding in Wilson's car, he saw a metal pipe. He claims that Wilson "got angry" when someone cut him off in traffic, and in response, "picked up a piece of metal [pipe]." Mr. Cain recalled that the pipe had a wooden handle on it, but he could not identify it as the same metal pipe that was used in the murder of Ms. Clyburn.
Wilson did not introduce testimonial evidence during his trial, but did file a pre-trial motion to introduce evidence that another assault had occurred in Rock Creek Park three days prior to Ms. Clyburn's attack. He wanted to use this evidence to suggest that the person responsible for that assault might also be the person responsible for the murder of Ms. Clyburn. The trial court denied Wilson's motion. He seeks review of that ruling. At the end of the trial, the government requested that the trial court give the jury an instruction on second degree [711 A2d Page 77]
murder as a lesser included offense. The defense objected on the ground that "there's no evidence to support a second-degree murder in this case. And all we're doing is inviting the jury to compromise." After much discussion and debate, the trial court granted the government's request to instruct the jury on second degree murder. Wilson appeals the trial court's decision.
Wilson contends that the trial court erred when it gave the jury an instruction on second degree murder as a lesser included offense. He maintains that the government prosecuted him under first degree murder "present[ing] evidence of motive suggesting a purposeful and planned killing," and therefore, the ...