United States v. James H. Burks

470 F.2d 432, 152 U.S. App. D.C. 284, 1972 U.S. App. LEXIS 7117

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 19, 1972
• Docket: 71-1821
• Status: Published

Opinions

J. SKELLY WRIGHT, Circuit Judge:

Appellant was charged with first degree murder and carrying a dangerous weapon. The facts, according to the Government’s version of the story, indicated deliberate and premeditated murder. The decedent Price owed appellant part of the purchase price of a truck. Appellant visited Price on the morning of December 19, 1969, at the apartment project where Price worked, and asked Price to either pay the money or return the truck.¹ After Price refused, an argument ensued in which verbal threats were exchanged, but appellant left before any fight erupted. Later in the day appellant went to the house of a friend named Lombre where he obtained a gun. Returning to the apartment project that afternoon, he walked over to Price, who was then fixing an outside door to one of the apartments, pushed him into the apartment, and shot him three times.

Appellant took the stand and admitted firing the fatal shots, but he claimed to have acted in self-defense. According to his version of the incident, he had called his friend Lombre after his initial confrontation with Price and asked Lombre to drive him back to the apartment project later in the afternoon. His purpose in returning was not to encounter Price again, but rather to talk to Price’s employer who had agreed to try to talk Price into settling the debt. Appellant wanted Lombre to come along for protection² as he was afraid of Price, not only because Price had threatened him and had warned him not to try to take back the truck, but also because Price was much larger than appellant and appellant knew that Price had killed his own six-year-old son some years earlier.³

When appellant arrived at Lombre’s home before returning to the apartment project, Lombre was very sleepy, apparently as a result of holiday season partying, and was thus unable to drive him there as they had earlier agreed. Remembering that Lombre kept a revolver, appellant searched for and found the gun and put it in his jacket, intending to use it only to frighten Price off in the event of a physical attack. When he saw Price working outside one of the apartments, Price called to him to come over and then asked him to step inside the apartment with him. Once inside, appellant testified, Price told him “he wanted [him]” and started coming toward him. Appellant warned that he had a gun. Price said, “Go ahead and shoot,” and moved as if to swing at appellant, who then fired.

The jury found appellant guilty of carrying a dangerous weapon and second degree murder. Because the trial court committed prejudicial error in refusing to admit certain evidence offered by the defense, we reverse the conviction of second degree murder.

I

In order to corroborate appellant’s own version of the killing, the defense attempted to introduce evidence of Price’s violent and dangerous character — specifically evidence that Price had killed his own six-year-old son in 1965. As this court has long recognized, evidence of the deceased’s violent character, including evidence of specific violent acts, is admissible where a claim of self-defense is raised. Such evidence is relevant on the issue of who was the aggressor⁴ and, where there is evidence that the defendant knew of the deceased’s character, on the issue of whether or not the defendant reasonably feared he was in danger of imminent great bodily injury.⁵ See Evans v. United States, 107 U.S.App.D.C. 324, 277 F.2d 354 (1960); Marshall v. United States, 45 App.D.C. 373 (1916).

The defense first tried to introduce evidence of the deceased’s character through the testimony of the deceased’s wife, Mrs. Price. When the defense called her to the stand, however, the court questioned the propriety of her testifying and, after a long and confusing colloquy between court and counsel, the court ruled that it would advise Mrs. Price that she need not testify. The court’s decision was apparently based on 14 D.C.Code § 306(a) (1967) which provides: “In civil and criminal proceedings, a husband or his wife is competent but not compellable to testify for or against the other.”

The common law privilege of one spouse not to testify “for or against” the other is limited in two respects, either of which would bar its application here. First, the privilege applies only when the testimony of one spouse would favor or disfavor “the other spouse’s legal interests in the very case in which the testimony is offered.” ⁶ 8 J. Wig-more, Evidence § 2234, at 231 (McNaughton rev. 1961). (Emphasis in original.) See Halback v. Hill, 49 U.S.App.D.C. 127, 130, 261 F. 1007, 1010 (1919). Mr. Price’s legal interests were in no way at stake in this case and the privilege was therefore inapplicable. Second, the privilege ends with termination of the marital relationship through the death of one spouse. See 8 J. Wigmore, supra, at 238-239. The policy of the privilege — protection of family harmony⁷ — cannot be served if the marital relationship has already ended.⁸ While this court has held that 14 D.C.Code § 306 is “a congressional enactment which completely abrogates the common law rule as far as this jurisdiction is concerned,” Postom v. United States, 116 U.S.App.D.C. 219, 220, 322 F.2d 432, 433 (1963), cert. denied, 376 U.S. 917, 84 S.Ct. 672, 11 L.Ed.2d 613 (1964), we have also had occasion to note that the purpose of Congress in enacting this statute “was to remove grounds of ineompetency, and not increase them. * * * Therefore a husband or wife, under this statute, can claim no greater privilege than existed at common law.” Halback v. Hill, supra, 49 U.S.App.D.C. at 130, 261 F. at 1010.

Thus it was error for the court to hold that under 14 D.C.Code § 306(a) Mrs. Price had a privilege not to testify. Nor can the court's action be justified on the basis of the privilege not to reveal confidential marital communications. See 14 D.C.Code § 306(b) (1967). While this privilege survives the death of one spouse, see Hopkins v. Grimshaw, 165 U.S. 342, 351, 17 S.Ct. 401, 41 L.Ed. 739 (1897); United States v. Lewis, 140 U.S.App.D.C. 40, 43 n. 10, 433 F.2d 1146, 1149 n. 10 (1970); McCartney v. Fletcher, 10 App.D.C. 572 (1897), it was nevertheless inapplicable in this case. The confidential communications privilege does not extend to noncommunicative acts, United States v. Lewis, supra, and a communication otherwise privileged loses its privileged character on coming into the hands of a third party, Dickerson v. United States, 62 App.D.C. 191, 65 F.2d 824, cert. denied, 290 U.S. 665, 54 S.Ct. 89, 78 L.Ed. 575 (1933). Under either of these doctrines, the confidential communications privilege would not apply to Mrs. Price’s testimony about her husband’s beating to death their own child. And if counsel for defendant would have questioned Mrs. Price about other aspects of the deceased’s character, conceivably asking her to reveal confidential communications, the appropriate procedure in that event would have been to object to the questions as asked, or to voir dire Mrs. Price out of the presence of the jury to ensure that no such questions would be asked before the jury.⁹ In any case, it was wrong to hold that the witness had the right to refuse to take the stand when it was clear that some of her testimony would have been outside the confidential communications privilege.

At oral argument counsel for the Government contended that appellant should be barred from challenging the court’s ruling since the defense never actually called Mrs. Price to ask her whether she would exercise the erroneously granted privilege. Our reading of the record indicates, however, that it was clear to all concerned that Mrs. Price was not going to testify unless she had to. In fact, in making its ruling the court brought the matter to a close by stating, “Well, we’ll tell her that she doesn’t need to testify. Have you got anything else?” While the proper procedural course would have been to ask Mrs. Price to exercise her privilege for the record, we can attach no significance to the defense’s failure to do so in this particular case.

It also appears from the record that the error in barring this testimony was prejudicial. Appellant admitted the shooting, and his sole defense was self-defense. The evidence he sought to introduce was vital to this defense and, even if it might not have induced the jury to acquit, it might well have induced it to return a verdict of guilt for the lesser included offense of manslaughter instead of second degree murder. See Evans v. United States, supra. Nor is it significant that appellant had already brought some attention to the child killing by mentioning it when he testified on his own behalf. While the jury might have discredited his testimony on this issue, it would have had virtually no choice but to believe Mrs. Price if she had taken the stand and testified that Mr. Price had killed their son.

II

The defense also sought to prove Price’s violent character by introducing his conviction of a violation of 22 D.C. Code § 901 (1967) which makes it unlawful to “torture, cruelly beat, abuse, or otherwise wilfully maltreat any child under the age of eighteen years * * *.” Price had pleaded guilty to this charge, apparently after the Government dismissed an indictment for second degree murder that had issued after the child killing incident. The trial court barred this evidence also, apparently on the ground that appellant testified that he was fearful because the decedent was a “child-killer,” while the conviction was only for cruelty to the child. As noted earlier, however, where self-defense is raised and there is an issue as to who was the aggressor, evidence of the deceased’s violent character is relevant and admissible even though unknown to the defendant. See note 4 supra. Thus the defense in this case had a right to prove any violent acts of the decedent, regardless of whether appellant testified that he knew about those acts.

Counsel for the Government also argues that since it is possible to violate 22 D.C.Code § 901 in a nonviolent manner— keeping a child chained or depriving him of food are examples given by the Government — proof of the conviction is inadmissible under the rule set down in Jones v. United States, 128 U.S.App.D.C. 36, 385 F.2d 296 (1967). The record in Jones indicated that the proffered evidence “consisted solely in the docket entry, which disclosed only that [the decedent] had been convicted under D.C. Code § 22-505 (1961 ed.).” 128 U.S. App.D.C. at 38 n. 2, 385 F.2d at 298 n. 2. We held that the trial court properly refused to admit the docket entry into evidence because 22 D.C.Code § 505 not only makes unlawful the violent act of assaulting a police officer, but also makes it illegal to obstruct, even in a nonviolent manner, a police officer in the performance of his duties. We reasoned, then, that the docket entry did not show “the nature of the conduct for which [decedent] had been convicted.” Ibid. In other words, the proffered evidence did not prove any prior violent act on the part of the decedent.

Even assuming, arguendo to be sure, that such cruelty as depriving a child of food or keeping him in chains is nonviolent, the facts of this case do not fall within the rationale of Jones. In the case at bar, the violent nature of the conduct for which Price had been convicted was indicated by the evidence tendered to the trial court. This was no mere docket entry of a conviction disclosing only the citation of the statute violated, 'but a conviction based on a plea of guilty to an indictment that charged that the decedent Price did “beat, abuse and otherwise willfully maltreat” his six-year-old son. The proffered evidence thus indicated a past violent act of the decedent Price and was not made inadmissible by our decision in Jones.

Since barring proof of the conviction only compounded the prejudicial error made by the court in informing Mrs. Price that she need not testify about the same occurrence, we must reverse the conviction of second degree murder and remand for proceedings consistent with this opinion.

So ordered.

1 . Appellant testified that he and Price had agreed earlier that if Price did not come up with the money by Dec. 19 appellant would take the truck back and could use it until Price paid the debt.

2 . Appellant also needed a ride back to the apartment. From what is indicated in the record, appellant did not own a car of his own except for the truck which he had sold to Price but which was still registered in his name. He drove out to see Price in the morning in a friend’s car, and when he returned later in the afternoon after his visit with Lombre, he borrowed another friend’s car.

3 . When asked why lie was afraid of Price, appellant testified: “Several reasons maybe. Mr. Price was much larger than I was, kind of solidly built and mean. * * * I knew that if he could beat his six-year old boy to death, he wouldn’t probably hesitate to beat me to death, too.”

4 . It bears emphasis, since the trial court in the case at bar was confused on this point, that as to the issue of who was the aggressor it is irrelevant that the defendant did not know about the deceased’s character. “‘[The] additional element of communication is unnecessary; for the question is what the deceased probably did, not what the defendant probably thought the deceased was going to do. The inquiry is one of objective occurrence, not of subjective belief.’ ” Evans v. United States, 107 U.S.App.D.C. 324, 326, 277 F.2d 354, 356 (1960), quoting 1 J. Wigmore, Evidence, § 63, at 470-471 (3d ed. 1940). See State v. Griffin, 99 Ariz. 43, 47, 48, 406 P.2d 397, 399-400 (1965); Harris v. State, Okl.Cr.App., 400 P.2d 64 (1965). See generally Annot., 1 A.D.R.3d 571, 601-603 (1965), and cases cited therein.

There clearly was an issue in this case as to who was the aggressor. The prosecution’s theory was that appellant pushed Price into the apartment and fired the first shot into his back. Appellant, on the other hand, testified that he shot Price only after Price started coming toward him as if to swing at him. The other evidence in the case was also inconsistent on this point. The pathologist testified that the first shot hit Price in the back. Mrs. Weaver, who lived in the apartment and was an eyewitness to the shooting, testified as a Government witness that appellant fired the first shot while the two were facing each other.

5 . See 2 J. Wigmore, Evidence §§ 246, 248 (3d ed. 1940). Counsel for the prosecution argued during the colloquy with the court that if the issue were the defendant’s belief, then the proof should be limited to testimony by the defendant. He maintained that extrinsic proof of the acts should be inadmissible. This argument is incorrect for the following reasons. The issue in a case of self-defense — whether the defendant reasonably feared grave bodily injury — breaks down into two sub-issues: (1) whether the defendant did in fact fear imminent grave bodily injury, and (2) whether the defendant’s fear was that of a reasonable man. When a defendant takes the stand and testifies that he feared the decedent because he had heard1 that the decedent had committed a particular violent act, the jury is, of course, free to question whether the defendant is telling the truth. It is conceivable, for example, that the defendant never heard any such information. Extrinsic proof that the decedent did in fact commit the violent act serves to corroborate the defendant’s testimony as to what he heard, and is therefore relevant to the question whether the defendant did, in fact, fear injury at the hands of the decedent. See Dempsey v. State, 159 Tex.Cr.R. 602, 266 S.W.2d 875 (1954). Dempsey involved a fact situation remarkably similar to our own. Appellant there admitted killing the deceased but claimed he acted in self-defense “believing that the deceased, who he knew had recently cut his nephew’s throat, had a pistol or knife and was about to attack him.” Id. at 876. On appeal the issue was whether it was proper to admit extrinsic proof of the decedent’s violent act when the defendant had already testified about it. The court held: “Appellant testified that he knew the deceased ‘had just cut his nephew’s throat’. He should have been permitted to prove as a fact such act of violence.” Id. at 878.

6 . Wigmore found it difficult to rationalize this limitation. “If,” he asserted, “the fear of causing marital dissension or disturbing the domestic peace were genuinely the ground of the privilege * * *, then the privilege should apply to testimony which in any way disparages or disfavors the other spouse, irrespective of Ids being- a party to the cause * ®.” 8 J. Wigmore, Evidence 230-231 (McNaughton rev. 1961). (Emphasis in original.) Wigmore argues that the “attempt to be logical” with the marital privilege came to failure because the underlying theory of the privilege was itself questionable. Id. at 231. As he states: “[The marital privilege] is entertaining (if any error in the law can ever be entertaining) because of its exhibition of the subtle power of cant over reason and of the solemn absurdity of explanations which: do not explain and of justifications which do not justify.” Id. at 213.

In any event, the cases indicate that American jurisdictions, including our own, have accepted the common law limitation. See, e. g., Halback v. Hill, 49 U.S.App.D.C. 127, 130, 261 F. 1007, 1010 (1919); People v. Langtree, 64 Cal. 256, 258, 30 P. 813, 814 (1883); State v. Parrott, 79 N.C. 615, 617 (1878); State v. Briggs, 9 R.I. 361, 365 (1869). See also United States v. Lewis, 140 U.S.App.D.C. 40, 43, 433 F.2d 1146, 1149 (1970), which refers to the privilege as “disqualifying a spouse as a witness in litigation to which the other is a party.”

7 . See Hawkins v. United States, 358 U.S. 74, 77-78. 79 S.Ct. 136, 3 L.Ed.2d 125 (1958); Lutwak v. United States, 344 U.S. 604, 615, 73 S.Ct. 481, 97 L.Ed. 593 (1953).

8 . “Is there for married pairs a posthumous peace, capable of fracture by service of subpoena upon the survivor, and therefore fit to be forfended by the law? If so, then the privilege should extend a post mortem protection. But unless we assume such a theory, the privilege ceases upon the death of a spouse.” 8 J. Wigmore, supra note 6, at 238. See United States v. Gonella, 3 Cir., 103 F.2d 123, 124 (1939); Fox v. Fox, 75 Wyo. 390, 402, 403, 296 P.2d 252, 255-256 (1956). Compare cases holding that divorce terminates the privilege. See, e. g., Pereira v. United States, 347 U.S. 1, 6, 74 S.Ct. 358, 98 L.Ed. 435 (1954); Volianitis v. Immigration and Naturalization Service, 9 Cir., 352 F.2d 766, 768 (1965); United States v. Ashby, 5 Cir., 245 F.2d 684, 686 (1957); Hoss v. Purinton, 9 Cir., 229 F.2d 104, 108-109, 16 Alaska 48, cert. denied, 350 U.S. 997, 76 S.Ct. 547, 100 L.Ed. 861 (1956).

9 . See United States v. Lewis, supra note 6, 140 U.S.App.D.C. at 45 n. 22, 433 F.2d at 1151 n. 22; Sacks v. Sacks, 75 U.S.App.D.C. 165, 124 F.2d 527 (1941).