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United States v. Donley

argued: April 25, 1989.

UNITED STATES OF AMERICA,
v.
MALCOLM C. DONLEY, APPELLANT



On Appeal from the United States District Court for the District of New Jersey, D.C. Criminal No. 88-066.

Author: Higginbotham

Opinion OF THE COURT

HIGGINBOTHAM, JR., Circuit Judge

This is an appeal of a sentence of life imprisonment for a conviction of first degree murder imposed under the new guidelines ("Sentencing Guidelines") promulgated by the United States Sentencing Commission, pursuant to the Sentencing Reform Act of 1984, as amended, 18 U.S.C. § 3551 et seq. (Supp. V 1987), and 28 U.S.C. §§ 991-998 (Supp. V 1987). In addition, the appellant challenges a number of evidentiary and other rulings by the district court. This court has jurisdiction in the appeal of the final judgment of the district court under 28 U.S.C. § 1291 (1982). We will affirm.

I.

Except as noted, the following facts are essentially undisputed. Linda K. Donley was serving as a Sergeant in the United States Air Force at the time of her murder. She lived with her husband, Malcolm C. Donley ("Donley"), and their daughter in family housing at McGuire Air Force Base, where she was stationed. Appellant's Appendix ("App.") at 187-191, 194. The Donleys had been having domestic difficulties for some months, and the McGuire Housing Office was considering terminating Mrs. Donley's entitlement to base housing because of domestic disturbances at her residence. App. at 290-297, 331-333. Mrs. Donley wanted to separate from her husband. She had devised a plan to convince him that they were being evicted and that she was going to move in with her parents. She hoped that he would move out of their home first, and she would then stay on in the base housing. App. at 200, 292-293, 333-336. The day before her death, Linda Donley had begun to pack, and her mother, who was visiting her, heard her mention to her husband the impending move and the separation. App. 204-208. The following night, her husband Malcolm Donley killed her by repeatedly striking her in the head with a hatchet and a meat cleaver. App. 438-442. He also cut her neck with a knife. App. 442-443.

Mr. Donley never denied killing his wife, but claimed that he had done so in the heat of passion shortly after finding her in their bedroom with another man. App. 154, 549-551. The prosecution introduced evidence to show that Mrs. Donley had gone to bed and was asleep when her husband attacked and killed her. App. 210-212, 346, 348, 375, 427, 433, 445-446. The jury returned a conviction of murder in the first degree. The Presentence Report, App. 7-17, recommended no departure from the Sentencing Guidelines and the district court imposed a sentence of life imprisonment, which it considered to be mandatory under federal law for first degree murder.

II.

The appellant challenges a number of evidentiary and other rulings by the district court, only one of which we will discuss here.*fn1 He claims that the District Court erred in allowing the government to introduce testimony by the victim's mother, Mrs. Brown, as to hearsay statements by the victim to show her plan and state of mind. Donley claims, first, that the statements were inadmissable hearsay used to prove his own future conduct, and second, that they were extremely prejudicial to him. Our standards of review for the two claims are different. With regard to the second, whether the evidence should have been excluded on grounds of prejudice, our standard is abuse of discretion. In re Japanese Electronic Products, 723 F.2d 238, 260 (3d Cir. 1983), rev'd on other grounds, Matsushita Electric Industrial Co., v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

With regard to the first question, whether the statements of the victim's mother qualify as an exception to the rule barring hearsay evidence under Rule 803(3) of the Federal Rules of Evidence, our review is plenary. Federal Rule of Evidence 803(3) provides for an exception to the hearsay rule if the statement is introduced to show the declarant's then existing state of mind, such as his intent, plan or design.*fn2 The evidence may also be used to prove or explain acts or conduct of the declarant. The question for us on review is whether the statements indeed go to show what the government claims they show. That is a question of relevancy*fn3 and our standard of review for relevancy rulings is plenary. Brobst v. Columbus Services Int'l, 824 F.2d 271, 274 (3d Cir. 1987); In re Japanese Electronic Products, 723 F.2d at 269.*fn4

The government used Mrs. Brown's testimony to show that the deceased had a plan to convince her husband that they were being evicted, and that she acted shortly before her death to further her plan. Linda Donley had started packing up the apartment and her mother testified that she heard her daughter make several statements to the appellant regarding the packing, the separation agreement and the division of property. App. 200-208. Donley claims that the testimony was used to show not just the plan and state of mind of the deceased, but also his future conduct. We do not agree. The testimony went not to show that the defendant was soon to kill the declarant, but, rather, to show the existence of the deceased's plan to move out of the base apartment and separate from her husband. The government properly sought to persuade the jury to infer from her statements that she had such a plan and, in turn, to infer from that plan and the defendant's awareness of it that he had a motive for murder other than the one he claimed. The motive for murder was contested. The appellant claimed that he killed his wife because he had found her with another man. The government claimed, however, that the defendant killed her because of the imminent marital separation. The government was entitled to introduce testimony from which the jury might reasonably infer the existence of the motive the government proposed, provided the testimony was not inadmissible on other grounds.*fn5

Under Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 36 L. Ed. 706, 12 S. Ct. 909 (1892), out-of-court statements showing the declarant's intention were admitted because his intention "was a material fact bearing upon the question in controversy." Id. at 299-300. See also U.S. v. Calvert, 523 F.2d 895 (8th Cir. 1975). Donley contends that the testimony by Mrs. Brown was unnecessary because the victim's plan was not disputed, and the hearsay testimony should therefore have been excluded. It is true that the uncontested testimony of another witness, Captain Swanson, showed the existence of the plan. App. 292-3. However, the mother's testimony was needed to show that the victim was putting into effect her plan to separate from the appellant and to force him out of the base housing shortly before she was killed. It was not just the existence of the plan, the government claims, but its imminent realization, that provided the motive for murder.

Donley further argues that the hearsay statements of the victim cannot go to show his motive because Mrs. Brown could testify only that her daughter had said them, not that he had heard or responded to them. App. 204-206. He concludes that they therefore should not have been admitted. The fact that the mother could not be certain that the appellant heard what the victim had said does not make the testimony inadmissible, nor does it mean that it cannot be useful in establishing motive. The testimony offers evidence from which the jury might have inferred that the appellant heard the statements (Applt's App. 206-207), but even if he did not hear them, the evidence was still admissible. Statements admitted under Fed.R.Evid803(3) to show the declarant's intent or plan may be used to show that the declarant acted in accord with that plan. See Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 36 L. Ed. 706, 12 S. Ct. 909 (1892); U.S. v. Calvert, 523 F.2d 895 (8th Cir. 1975).*fn6

Lastly, the appellant claims that the testimony of the victim's mother, even if relevant, was extremely prejudicial to him. Prejudice does not in itself, however, make the testimony inadmissible. The question that the trial court had to decide was whether the probative value of the testimony was outweighed by the danger of unfair prejudice. Fed.R.Evid. 403. Mrs. Brown's testimony was relevant, as discussed above, and nothing in the record suggests that it was overly emotional. The district court concluded that the danger of unfair prejudice did not outweigh the probative value of the testimony, and we conclude that the district court did not abuse its discretion in making that ...


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