Lead Opinion
Appellant, Willie L. Minick, was convicted after a jury trial of first-degree felony murder (D.C. Code § 22-2401 (1981)), and rape (id. § 22-2801). On appeal, his central contention is that certain physical evidence seized from his home at the time of his arrest should have been suppressed as fruits of an unlawful warrantless entry and arrest. Aрpellant also argues that the trial court committed reversible error by allowing certain allegedly prejudicial evidence to be admitted at trial.
I
Appellant’s suppression argument was previously considered by this court in Minick v. United States,
The government argues that in light of this earlier decision our consideration of the suppression claim is forestalled by operation of the “law of the case” doctrine. While this doctrine is most frequently cited in the trial court context, it is applicable to the instant context as well. That doctrine states that “once the court has decided a point in a ease, that point becоmes and remains settled unless or until it is reversed or modified by a higher court.” Kritsidimas v. Sheskin,
The doctrine of law of the case conserves judicial time and resources by discouraging “multiple attempts to prevail on a single question,” and is limited in application only where (1) the first ruling has little or no finality, or (2) the first ruling is clearly erroneous in light of newly presented facts or a change in substantive law. Kritsidimas v. Sheskin, supra,
Appellant does not dispute the finality of the en banc opinion, nor does he set forth any newly discovered facts. Rather, the gravamen of his argument is that the en banc court “misapplied” or “ignored” the principles of law set down in the primary case upon which it relied. We wholly disagree, and in any event, the established tenets outlined above prevent us from reviewing the en banc court’s opinion in this case for such alleged deficiencies.
In the alternative, appellant maintains that Welsh v. Wisconsin,
In Welsh, the Supreme Court held that the warrantless, nighttime entry of the defendant’s home to arrest him for a civil, nonjailable, traffic offense was prohibited by the Fourth Amendment. The Court concluded that the factors which must be present to allow application of the exigent circumstances exception to the Fourth Amendment proscription against warrant-less felony arrests in the home, were not present under the particular facts of that case. Id.,
The holding in Welsh is not in conflict with the result reached in Minick I. In Minick I, in addition to other factors creating exigency, such as the evanescent nature of the physical evidence that the police sought to recover, the underlying offenses involved — rape and murder — could hardly have been more grave. Accordingly, we believe this court’s analysis and resolution of the Fourth Amendment issue presented in Minick I is in substantial agreement with the principles of law set out in Welsh.
As аppellant has presented no new factual or legal basis for his argument, we find that the en banc court’s ruling in Minick I is dispositive of the instant appeal on this question.
II
Appellant also contends that the trial court committed reversible error by permitting the government to introduce testimony concerning certain parole documents belonging to aрpellant. Upon review of the relevant evidence, see Page v. United States,
The facts relevant to this issue are as follows: Within approximаtely one hour of the estimated time of the victim’s rape and murder, police officers searching the scene discovered appellant’s wallet lying adjacent to a tennis court, approximately twenty-five feet from the victim’s body. In the wallet, police found a driver’s license bearing аppellant’s name and address, and appellant’s parole papers.
From the outset of the trial proceedings, defense counsel objected to introduction of the parole paрers. In light of counsel’s refusal to stipulate to the presence of the papers in appellant’s wallet on the night in question, and on government counsel’s agreement that the court could give an immediate cautionary instruction on the proper use of the papers by the jury, the trial cоurt issued a preliminary ruling that the government could elicit testimony concerning the papers.
During his opening statement, defense counsel specifically alluded to his intention to dispute the government’s claim that certain witnesses saw appellant in possession of the wallet a few hours before the incident occurred. Defense counsel stated that
the witnesses that were with Mr. Willie Lee Minick hours before this happened will tell you that what they saw was a plastic container containing photographs. Photographs of Mr. Minick’s friends and family, that’s what they saw. Indeed you’ll learn that Mr. Minick’s wallet had bеen missing for several days prior to his arrest.
Prior to the testimony of two government witnesses, Kevin Taylor and Ronald Wilson, the defense renewed its motion to preclude any reference to the parole papers. In response, the government proffered that Mr. Taylor would testify that he remembered seeing appellant’s wallet on the night of the murder because he remembered noticing that the wallet contained parole papers. The government argued that testimony concerning the papers was highly probative of Taylor’s ability to remember seeing the wallet that evening, а matter put in issue by defense counsel’s opening statement. When the trial court asked defense counsel whether they intended, as indicated by their opening statement, to present evidence that appellant’s wallet was missing prior to the murder, defense counsel replied, “[w]e have testimony frоm a witness” to that effect. The trial court then ruled that the government could elicit testimony concerning the parole papers. Kevin Taylor subsequently testified in accordance with the government’s proffer.
Appellant now claims that it was error to admit this testimony concerning the parole documents because it constituted “other crimes” evidence, which was inadmissible unless and until appellant “opened the door” through cross-examination of the govеrnment’s witness, or by putting his own character into evidence.
It is well established that when testimony alluding to other criminal behavior is introduced for a purpose other than to show mere criminal propensity, the decision whether the evidence is admissible on grounds that it’s prejudicial effect is outweighed by its probative value, is committed to the discretion of the trial court, and will not be reversed absent an abuse of discretion. See Hawkins v. United States,
As a threshold matter, we agree with appellee that evidence concerning the parolе papers was not introduced to show appellant’s bad character or propensity to commit crimes. Rather, it was presented as highly probative evidence of a material fact in issue, to wit, whether the wallet found by the police near the victim belonged to appellant. See Panzavecchia v. Wainwright,
Indeed, Mr. Taylor’s and Mr. Wilson’s testimonies that they saw the wallet and the parole papers in appellant’s рossession earlier on the evening of the crime, was necessitated in large part by the defense proffer that the wallet had been lost a few weeks before the night of the incident. The witnesses’ specific references to a detail like the parole papers added “narrative veracity” to their testimony and reinforced their credibility to recall the events on the evening in question. See United States v. Williamson, supra,
Finally, any prejudicial impact that the admission of the parole papers could have had on appellant was mitigated by the cautionary instructions which the trial court gave to the jury on the use of the evidence. See United States v. Moore,
In sum, we conclude that the possibility of prejudice from the admission of the parole papers was minimal when weighed against its probative value. Finding none of appellant’s arguments on appeal persuasive, we affirm his convictions.
Affirmed.
Notes
. See D.C. Code § 23-104(a)(l) (1981). Thus, because the first appeal was brought before trial, pursuant to subsection (a)(1), subsection (e) of section 23-104 does not apply here. Subsection (e) provides in pertinent part that interlocutory government appeals, and decisions rendered thereto, “shall not affect the right of the defendant, in a subsequent appeal from a judgment of conviction, to claim as error reversal by the trial court on remand of a ruling appealed from during trial." A close reading of subsection (e) makes clear that the above quoted language only applies to interlocutory appeals “taken pursuant to subsection (b) or (d) during trial" (emphasis added), and not those taken pursuant to subsection (a)(1), at the pretrial stage. See Leasure v. United States,
. The facts underlying the suppression issue are set forth at length in Minick I and need not be repeated here.
. The wallet also contained the personal identifications of certain other individuals. These effects were the proceeds from robberies for which appellant was later convicted.
. During Taylor’s testimony, the trial court again asked defense counsel at a bench conference whether it was the defense’s position that appellant’s wallet was missing prior to appellant’s encounter with Mr. Taylor. Again, defense counsel stated thаt that was their position.
. We observe that even though appellant never produced a witness to testify that the wallet had been lost, he was given ample opportunity to cross-examine Mr. Taylor and Mr. Wilson.
Concurrence Opinion
concurring:
I write separately only to emphasize that while I am bound to adhere to the mandate of Minick I, I agree with the appellant that the case was wrongly decided. See Dorman v. United States,