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Gilmore v. United States

November 18, 1999


Before Terry, Steadman, and Schwelb, Associate Judges.

The opinion of the court was delivered by: Terry, Associate Judge

Appeal from the Superior Court of the District of Columbia (Hon. Mary Ellen Abrecht, Trial Judge)

Submitted June 9, 1998

Appellant was convicted of threatening to damage the property of another, threatening to injure a person, possession of a Molotov cocktail, arson, and assault. *fn1 On appeal he contends (1) that the trial court erred in denying his motion to suppress a statement; (2) that the evidence was insufficient to support his conviction of arson; (3) that the trial court abused its discretion in admitting into evidence the bottle from which he made the Molotov cocktail; and (4) that the trial court erroneously instructed the jury on a witness' prior inconsistent statement. We reject all of these arguments and affirm all of the convictions.


This case arises from a series of five separate incidents that occurred between April and August 1992. We shall summarize the four that resulted in convictions. *fn2

A. The April 6 incident

Michelle Holmes married appellant Gilmore in 1988. Although they did not get a divorce and were in fact still married at the time of trial, they had separated in December 1991, when Ms. Holmes and their three children left the marital home and moved in with other family members at 4426 New Hampshire Avenue, N.W. ("the Johnson house"). On April 6, 1992, Mr. Gilmore, Ms. Holmes, and two friends were sitting on the front porch of the Johnson house, drinking beer and talking. Mr. Gilmore became angry when Ms. Holmes' grandfather stepped onto the porch and "looked at him funny," so he took a baby's toy and "hit [Ms. Holmes] in the head as hard as he could, and then he pushed [her]." After Ms. Holmes pushed him back, he poured beer in her hair, threatened to blow up the house, *fn3 and threatened to beat up her grandfather. Ms. Holmes "was sure" that Mr. Gilmore would act on his threats.

B. The May 13-14 incidents

The house next door at 4428 New Hampshire Avenue, where Clifford Smith lived with various family members ("the Smith house"), was physically connected to the Johnson house. On the night of May 13, 1992, Mr. Smith was sitting outside in front of another neighbor's house, talking with a few other persons; Gilmore was there also. After a few minutes' conversation, Mr. Gilmore and Mr. Smith's brother William got into a shoving match, and Gilmore threatened to kill both Clifford and William Smith because he said they were "messing around" with his wife. Gilmore then walked down the street and returned with a knife, which he swung at William Smith. Before he could hurt anyone, however, another man "snatched the knife out of his hand and threw it away . . . across the street," where it was found by the police later that night. Clifford Smith went back inside his house and asked someone (not further identified) to call the police. Gilmore fled when the police arrived.

About two hours later, someone knocked on the door of the Smith house. Clifford Smith testified:

I went and answered the door, and I opened it. He [Gilmore] had knocked on the door and went down to the bottom of the steps, and he had a cocktail bottle cocked back and [said that] he was going to fuck me up, excuse my language, that he [was] going to mess me up, and was going to kill me, he [was] going to burn the house down.

Mr. Smith described the bottle as "a bottle of gasoline with the stem hanging out the top of it." Then, as Gilmore attempted to light it with a cigarette lighter, Smith told him the police were coming, whereupon Gilmore "grabbed the bottle and just ran up the street." Later, however, he returned to the Smith house with a second bottle similar to the first. Gilmore lit the wick and tried to throw the bottle toward the Smith house, but it slipped from his hand and fell to the ground approximately fifteen or twenty feet short of its target. During this second encounter, Mr. Gilmore threatened to kill Ms. Holmes, who was standing on her porch next door, as well as Charles and William Smith; he also said he was going to burn down both of their houses.

Clifford Smith's testimony was corroborated by three other witnesses. William Smith said that while he and some friends were sitting outside drinking, Gilmore "started to jump up and threaten [him]" and accused him of sleeping with his wife. William Smith eventually punched Gilmore on the chin, whereupon Gilmore "ran to the car and got . . . a knife." With the knife in his hand, Gilmore approached Smith and threatened to kill both him and Clifford Smith. Later that night, William Smith saw Gilmore approaching their house with a lighted bottle in his hand, threatening to kill them both and to blow up their house. William Smith went inside and called the police. Michelle Holmes testified that she saw Gilmore "coming down the street with . . . cocktail bombs in his arms." He "was throwing them, but they slipped," and he was yelling. Finally, Officer James Castellano of the Metropolitan Police testified that at approximately 2:00 a.m. he went to 4428 New Hampshire Avenue, where he "took a report for threats." About an hour later, he was called back to the same house, where he saw an orange juice bottle on the ground in front of the house, on fire. On closer inspection he saw that the bottle was "filled with some kind of liquid." When Officer Castellano kicked the bottle, it broke, and the liquid burned itself out on the sidewalk. *fn4

William Kinard, a forensic chemist with the Bureau of Alcohol, Tobacco, and Firearms (ATF), was accepted as an expert in the area of forensic chemistry. He testified that he performed a chemical analysis on what was left of the bottle and found gasoline on it. James Powell, an ATF explosives enforcement officer, testified as an expert on explosives and incendiary devices. He described a Molotov cocktail as "a breakable container containing flammable liquid with some sort of wick, or something to ignite the flammable liquid."

C. The August 12 incident

Michelle Holmes testified that on August 12, 1992, she and her mother were sitting in front of their house, talking, when Mr. Gilmore "came about in his car, yelling and screaming . . . that he was going to kill me." Gilmore then left, and Ms. Holmes went inside, but he soon returned and "was banging on the door" and again threatening to kill her. Holmes called the police, who "took him away," but he came back again later and drove past the house, and then kept calling her on the telephone "all night." Latisha Gilmore, the daughter of Mr. Gilmore and Ms. Holmes, testified that she was in the kitchen that night when her father knocked on the door. The knock, she said, "sound[ed] like a pole or a hammer." Although she heard her father talking, she did not hear what he said.

William Smith testified that on August 12, shortly after 10:30 p.m., he was in front of his house, putting away his bicycle, when Gilmore "pulled up with his car and he started making threats, I know you're sleeping with my wife, I know you're having sex with my wife, and all of this . . . ." Gilmore then got out of his car, "grabbed something out of the car, and approached to come across the street," so Smith left the bicycle on the front porch and went next door to the Johnson house. As he sat on the porch with Ms. Holmes and her mother, Gilmore "kept like going in every direction of New Hampshire Avenue, changing clothes, threatening, coming back like he had weapons and stuff, saying that he was going to shoot me . . . ." Once again the police were called, and when they arrived, Gilmore "was standing in front of Michelle's house with an iron black pipe . . . hitting with it in his hand." The police placed him under arrest, but he was evidently released the same night, because he began again to make threatening phone calls. *fn5

D. The August 14 incident

Anthony Davis testified that on August 14, 1992, he was waiting for a bus at the Fort Totten Metro station when he heard "a lot of bickering and fussing." He turned and saw Mr. Gilmore grab a woman from behind and pull her right arm so that the bags she was carrying fell to the ground. The woman cried out, "Let me go," but Gilmore "maintained a hold on her." Davis reported the incident to the station manager, and within minutes the police arrived and arrested Gilmore.

Michelle Holmes testified that she was on her way home from work on August 14 when she encountered Mr. Gilmore, who was standing just outside the Fort Totten Metro station. She walked past him, but he followed her, pulled her arm, "threw [her] bag down," and started to choke her. She struggled, hitting him with her purse, and eventually ...

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