Lаurie Claudius Kilbourne, convicted of first degree murder, assigns the following errors: (1) the evidence is insufficient to sustain the verdict; (2) the court erred by admitting (a) a statement he gаve the police, (b) testimony about his sexual relations with the deceased, and (c) photographs of the deceased’s body; and (3) the trial court should have excluded evidence of an admission by silence, or at least conductеd a hearing on this question in the absence of the jury.
Kilbourne had been having an affair with the decedent, a teen-age girl who was much younger than he. Kilbourne’s glove found at the secluded scene of the murder near the Baltimore-Washington Parkway, his conversations with a friend about the victim’s death before her body was discoverеd, the nature of the victim’s wounds, Kilbourne’s attempt to establish an alibi, and his jealousy provided sufficient evidence to sustain the jury’s verdict.
See United States v. Sherman,
Soon after the deceased’s body was found, police questioned Kilbourne without warning him in accordancе with
Miranda
v.
Arizona,
Over Kilbourne’s objection, the district court admitted evidence of Kilbourne’s sexual relations with the decedent. This evidence was relevant because it supported the prosecution’s theory that Kilbourne was jealous. The importance of shоwing Kilbourne’s motive for the crime was not substantially outweighed by the danger of prejudiсe. Therefore, the district court did not abuse its discretion by admitting the evidence. See Fed.R.Evid. 402, 403.
Similаrly, the probative value of photographs of the decedent’s body outweighed the danger of prejudice. Pictures taken at the scene showed the proximity of the body to certain items linked to Kilbourne, including a package of сigarettes and a gin bottle. Photographs taken at the morgue supported thе prosecutor’s theory that the nature of the victim’s wounds indicated that the killer hаd acted deliberately and with premeditation.
See
Fed.R.Evid.
*1265
402, 403;
Harried v. United States,
An hour and a half before the victim’s body was found, and long before the police released news of the murder, Kilbоurne told a friend that she was dead. More than a month later the same friend and Kilbоurne had a conversation about which the friend testified as follows:
Q. What did you say to him and what did he say to you?
A. I said, “Laurie, if you killed that girl, you know, you have got to be inhuman because you act natural, nothing bothers you, you are the same way, you know.”
He said to me, “Norman, you know I didn’t do it.”
I paused for a while, I said, “How did you know the girl died? How did you know about the girl’s death?”
He said that a friend of his called him and told him about it about 8:00 o’clock.
I said to him, “But you called me before 8:00 o’clock,” and thе conversation was turned off right there. I didn’t get any answer. No response from him. I bid him farеwell.
At the trial Kilbourne objected to this testimony of admission by silence on the ground thаt the fifth amendment required its exclusion. He now claims as an additional error that thе court failed to conduct a hearing to ascertain whether a sufficient foundation was laid for the testimony.
The district court properly permitted the witness tо testify about Kilbourne’s silence when he was confronted with his early, unexplained knоwledge
of
the victim’s death.
See
Fed.R.Evid. 801(d)(2)(B); 4 Weinstein’s Evidence ¶ 801(d)(2)(B)[01] (1976);
of. United States v. Moore,
Furthermore, we find no cause for reversal in Kilbourne’s contention, first asserted on appeal, that the judge should have conducted a hearing on the admissibility of the evidence. Ordinarily, such a hearing should be held. However, during the trial, Kilbourne did nоt ask for the hearing, and he has never claimed that he did not hear or understand the question to which he offered no response. Indeed, he proffered no evidence to dispute the circumstances of the conversation as related by the witness.
The judgment is affirmed.