Bazelon, Chief Judge, and Wright and MacKinnon, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MACKINNON
Appellant was charged in a four-count indictment on September 9, 1969, with first degree murder and with carrying a dangerous weapon. On October 6 and 9, 1969, the trial court heard and denied appellant's motion to dismiss the indictment for lack of a speedy trial. Thereafter, on October 13, a jury trial commenced, and on October 24 appellant was found guilty of (1) second-degree murder and (2) carrying a dangerous weapon (D.C. Code § 22-3204). On November 12 the trial court granted appellant's motion for a mental examination, and on November 14 it ordered appellant's commitment to Saint Elizabeths Hospital.
On May 25, 1971, the court ordered a separate trial to determine appellant's mental responsibility for the crimes committed. Following a jury trial on September 14-22, appellant was found to be mentally responsible for both offenses. On December 14, 1971, the court heard and denied appellant's motion for judgment of acquittal notwithstanding the verdict or, in the alternative, for a new trial; and on the same date appellant was sentenced to (1) ten years to life imprisonment on the murder count and (2) two to ten years' imprisonment for carrying a dangerous weapon, the sentences to run concurrently. This appeal followed.
Under the Government's theory of the case, the victim, Parks, was a link in appellant's drug distribution network, peddling his merchandise on consignment from appellant. Upon falling into arrears in turning over to the appellant the money received from the drug sales, Parks was "disciplined" in traditional gangland fashion.
The case for the prosecution consisted principally of the testimony of another of appellant Brown's "outlets," one Dyson, who placed Brown at the scene of the crime and related a number of highly incriminating surrounding circumstances. *fn1 Other witnesses corroborated the basic pattern of Brown's narcotics operations and "disciplinary" methods as well as chronicling a variety of threats uttered by appellant against Parks and others.
The defense sought to impeach Dyson's credibility and also placed in issue the identity of the murderer by raising an alibi defense. The government apparently was successful in rebutting the alibi since the jury found Brown guilty of second-degree murder. *fn2
Appellant raises a wide array of issues. One issue, which we discuss at some length, is an evidentiary issue involving the improper admission of certain highly prejudicial hearsay testimony. Since we reverse on this narrow ground alone, we do not reach most of the issues argued by appellant since these alleged errors would be obviated by a new trial. However, since the speedy trial claim and the alleged defects in the separate trial on mental responsibility would recur in a new trial, we deal with them only very briefly here since we find these claims to be without merit. There simply was no substantial prejudicial delay attributable to the government in this case, and we agree with the trial judge's ruling in this regard. Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). *fn3 As to the separate trial on mental responsibility, there is no question that this was conducted without prejudicial error and that the verdict is amply supported by the evidence. *fn4
The evidentiary question upon which we focus our attention involves certain testimony elicited by the prosecution from the victim's wife. The government made a proffer that Mrs. Parks would testify to the effect that Mr. Parks had told her prior to his death that he was frightened that he would be murdered by appellant, Roland Brown. Defense counsel objected to this as hearsay, and the prosecution sought to justify it under the state of mind exception to the hearsay rule as somehow explaining the deceased's actions around the time of death. *fn5 The government realized that the testimony could not be considered as probative of the fact that Brown was the killer and even offered to delete the reference to Brown, leaving only the statement that Parks was afraid of being killed by someone. The trial court, however, refused to allow the deletion, being under the impression that this would have been improper. *fn6 The trial court also denied defense counsel's request for a limiting instruction at the time of the testimony *fn7 but did give the requested instruction at the close of the trial along with all the other charges.
The testimony that was finally elicited, and objected to, not only included the name of the defendant but dramatically emphasized it:
Q: You mentioned, Mrs. Parks, that he was frightened. What was he frightened of?
A: Frightened that he may be killed.
Q: And who did he say he was frightened was going to kill him?
MR. HOUK: No further questions.
Ultimately at the end of the trial, the judge did give an instruction on the permissible scope of the jury's consideration of the above testimony:
You have heard testimony in the course of this trial from Mrs. Thelma Parks that her husband, the deceased, Ricardo Parks, was afraid that he was going to be killed by Roland W. Brown. You ladies and gentlemen of the jury are instructed that this testimony is to be considered by you in connection with evaluating the state of mind of Ricardo Parks and its effect, if any, on his, Ricardo Parks' subsequent conduct.
You are not to consider this testimony to evaluate the state of mind or the conduct of the defendant, Roland W. Brown, nor infer nor conclude that the defendant inflicted injuries upon Ricardo Parks from which he died solely from this testimony. *fn8 I. GENERAL PRINCIPLES
Briefly stated, the state of mind exception to the hearsay rule allows the admission of extra-judicial statements to show the state of mind of the declarant at that time if that is at issue in the case. See PROPOSED RULES OF EVIDENCE FOR THE UNITED STATES COURTS, Rule 803 (3) (1973); note 55 infra. It also allows such statements to show a future intent of the declarant to perform an act if the occurrence of that act is at issue. Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 36 L. Ed. 706, 12 S. Ct. 909 (1892). In showing the declarant's state of mind the statements may either consist of direct or circumstantial evidence. Thus the statement "X is no good" circumstantially indicates the declarant's state of mind toward X and, where that mental state is a material issue in the case, such statement would be admissible with a limiting instruction. Technically it is not even hearsay since it is not being admitted for the truth of the matter alleged. We do not care whether X is in fact "no good" but only whether the declarant disliked him. However direct statements are also admitted. Thus the statement "I hate X" is direct evidence of the declarant's state of mind and, since it is
being introduced for the truth of the matter alleged, must be within some exception to the hearsay rule in order to be admissible. Since the state of mind exception does permit just such testimony, the distinction is not very important. *fn9 However, where the statement is of the former type (circumstantially probative of the declarant's state of mind), it invariably involves certain extraneous factual elements. In these situations a limiting instruction is always necessary to ensure that such factual matters are to be considered solely on the issue of the declarant's mental state and not for the truth of the matters contained therein. *fn10
This is, of course, the familiar rule of multiple admissibility. *fn11 In this context it operates in this manner: A statement which would be pure hearsay as to the truth of the matters alleged is not made inadmissible thereby if introduced solely to show the declarant's state of mind and if accompanied by a limiting instruction. This represents a basic policy judgment that the possibility of misuse of the evidence for the impermissible purpose, when minimized by a limiting instruction, is a risk worth chancing when compared to the harms that would likely result from the total exclusion of valuable relevant evidence. Yet recognition of the limited effectiveness of the special instruction has produced marked inroads on the rule of multiple admissibility where great prejudice inheres in the statement in question. *fn12
These principles must be applied with due deference to another fundamental concept in the law of evidence -- that of relevance. It is well established that some evidence, while bearing some logical relevance to the case, may in the discretion of the judge nevertheless be excluded where its probative value is substantially outweighed by the danger of unfair prejudice, confusion or delay. *fn13 This concept of "relative relevance," a rule of extrinsic policy, *fn14 allows the court to balance the need for such evidence against its probable dangers. II. RELEVANCE BALANCING OF STATE OF MIND TESTIMONY
In order to examine this balancing process in this context, we must begin by asking what exactly is the "prejudice" with which we are concerned here. Since such statements invariably contain two components -- the circumstantial facts themselves and the inference to be drawn from such facts as to the declarant's state of mind -- the prejudice lies in the danger of jury misuse of the evidence. Despite a limiting instruction to the effect that the evidence is to be considered solely on the issue of the declarant's state of mind (the proper purpose), there is the ever-present danger that the jury will be unwilling or unable to so confine itself. In cases like this, then, involving statements probative of the declarant's state of mind, the rule of multiple admissibility must be read in conjunction with the balancing rule of relevance. That is, where the limiting instruction is likely to be ineffective in its purpose, the possible ensuing prejudice must be weighed against the statement's probative value. *fn15 While the degree of prejudice depends on a number of factors, *fn16 perhaps the single most important consideration may be whether the statement, if used by the jury for its improper purpose, is virtually dispositive of the case and extremely damaging to the position taken by the opponent of the admission of the evidence (the defendant). *fn17
It should be emphasized that in the great majority of cases the limiting instruction is probably sufficient to so minimize the dangers of jury misuse as to prevent most serious prejudice. Long ago it was decided that such state of mind evidence should generally be admissible for a limited purpose. *fn18 In civil cases, such evidence is perhaps somewhat more freely admitted than in criminal actions since the prejudice often seems less pronounced. Yet even in civil cases, the limited utility of the special instruction with regard to such statements has been recognized. E.g., Adkins v. Brett, 184 Cal. 252, 193 P. 251, 254 (1920). *fn19 In criminal cases in general there has been a significantly greater acknowledgment of the weaknesses of the limiting instruction. *fn20 And specifically in the context of state of mind testimony in criminal homicide cases like the one sub judice, courts have expressly recognized that the limiting instruction is inadequate where the prejudicial dangers far outweigh a tenuous relevance to the issues presented in the case and where it is simply unrealistic to believe that the refined distinctions demanded by the limiting instruction can be faithfully maintained by any jury. *fn21
Quite a number of courts have confronted facts similar to those here involving hearsay statements made by the victim of a homicide which inferentially implicate the defendant. *fn22 Such statements by the victims often include previous threats made by the defendant towards the victim, narrations of past incidents of violence on the part of the defendant or general verbalizations of fear of the defendant. While such statements are admittedly of some value in presenting to the jury a complete picture of all the facts and circumstances surrounding the homicide, *fn23 it is generally agreed that their admissibility must be determined by a careful balancing of their probative value against their prejudicial effect. *fn24 Courts have recognized that such statements are fraught with inherent dangers and require the imposition of rigid limitations. *fn25 The principal danger is that the jury will consider the victim's statement of fear as somehow reflecting on defendant's state of mind rather than the victim's -- i.e., as a true indication of defendant's intentions, actions, or culpability. *fn26 Such inferences are highly improper and where there is a strong likelihood that they will be drawn by the jury the danger of injurious prejudice is particularly evident.
The quantum of prejudice, as stated above, is highest when the circumstantial facts in the statement are intimately related to the issue to be proved. In the context of homicide cases such as this, it is clear that where the improper purpose for which the jury might consider the evidence bears closely on the central question of defendant's guilt or innocence there is less likelihood that the jury will confine the statement to its proper realm. Here the functional utility of the limiting instruction becomes most doubtful. This is the lesson of the famous case Shepard v. United States, 290 U.S. 96, 78 L. Ed. 196, 54 S. Ct. 22 (1933). There the state of mind testimony which directly accused the defendant was so dispositive of his guilt *fn27 that the limiting instruction undoubtedly would have been entirely futile. *fn28 In the oft repeated words of Justice Cardozo:
It will not do to say that the jury might accept the declarations for any light that they cast upon the existence of a vital urge, and reject them to the extent that they charged the death to some one else. Discrimination so subtle is a feat beyond the compass of ordinary minds. The reverberating clang of those accusatory words would drown all weaker sounds. It is for ordinary minds, and not for psychoanalysts, that our rules of evidence are framed. They have their source very often in considerations of administrative convenience, of practical ...