After a jury trial, Appellant John H. Wilson was convicted of one count of second degree murder while armed, in violation of D.C.Code §§ 22-2403, -3202 (1996).
1
He filed a timely appeal. He contends that the trial court erred by giving a jury instruction on second degree murder as a lesser included offense where the government tried the mat
FACTUAL SUMMARY
On September 13, 1994, a United States Park Service employee found the nude body of Elise Clyburn lying face down in blood and splattered brain matter, in a wooded area of Rock Creek Park behind a parking lot at Grove 10. There was evidence that she had been stabbed twice in the face with such force as to penetrate her skull and brain. In addition, she suffered great trauma to the back of her head consisting of eleven lacerations between four and eight inches long which severed her scalp from her skull. There were several abrasions and lacеrations to the inner lining of her rectum. Semen in her vaginal area matched Wilson’s DNA profile. Some of Ms. Clybum’s clothes, which were soaked in blood, were strewn nearby in the grass. A “metal pipe fitting” and piece of wood covered in blood were lying three feet from her head.
The government established that on the night of Ms. Clyburn’s murder, Wilson and Ms. Clybum had been arguing. 2 Wilson was seen leading Ms. Clybum out of the apartment, and was heard stating to her, ‘You will find out when you get dead” in respоnse to a question she asked. Wilson was an extremely jealous boyfriend who monitored Ms. Cly-burn’s calls, destroyed her phone book, and became very angry when she was friendly with other men. It was also shown that an intimate relationship bеtween Wilson and Ms. Clyburn had ceased due to Ms. Cly-burn’s feeling that Wilson was sleeping with other women. 3
A friend, Georgia Kusi, testified that hours before the murder, she saw Wilson inside an apartment budding on Lamont Street, “in a rage” and yelling loudly at another mаn. Ms. Kusi saw Ms. Clyburn sitting alone in Wilson’s car, and described her as “not herself.” When Wilson returned to the apartment on Euclid Street later that night, Darlene Adams claimed that Ms. Clyburn was not with him, and that he asked her to wash out his blood stained shirt. Although boots he hаd worn that night contained blood, it matched neither his DNA profile nor that of Ms. Clyburn. Wilson said he had been in a fight with a deaf man earlier that evening, and warned Ms. Adams not to talk to any police officers or lawyers.
Two weeks before the murder took place, Ms. Clybum phoned the police in order to have Wilson and Ms. Adams removed from the apartment. When the police officer arrived, Wilson was heard calling Ms. Clybum names and had to be restrained. Mr. Reсee Cain, an associate of Wilson, testified that one day when he was riding in Wilson’s car, he saw a metal pipe. He claims that Wilson “got angry” when someone cut him off in traffic, and in response, “picked up a piecе of metal [pipe].” Mr. Cain recalled that the pipe had a wooden handle on it, but he could not identify it as the same metal pipe that was used in the murder of Ms. Clybum.
Wilson did not introduce testimonial evidence during his trial, but did file a prе-trial motion to introduce evidence that another assault had occurred in Rock Creek Park three days prior to Ms. Clybum’s attack. He wanted to use this evidence to suggest that the person responsible for that assault might аlso be the person responsible for the murder of Ms. Clyburn. The trial court denied Wilson’s motion. He seeks review of that ruling. At the end of the trial, the government requested that the trial court give the jury an instruction on second degree
ANALYSIS
I.
Wilson contends that the trial court erred when it gave the jury an instruction on second degreе murder as a lesser included offense. He maintains that the government prosecuted him under first degree murder “present[ing] evidence of motive suggesting a purposeful and planned killing,” and therefore, the jury had no rational basis upon which to convict him of second degree murder.
“As we have said previously, [t]o justify a lesser included offense instruction, there must be evidence to support a finding of guilt on the lesser offense.”
Bright v. United States,
Here, the еvidence was sufficient to support a second degree murder instruction. It is true, as Wilson points out, that the government built its case on the “long standing jealousy” which Wilson harbored toward Ms. Clybum.
4
However, we agree with the government that рroof of jealousy does not necessarily show that Wilson’s actions were calculated or planned. In fact, there was evidence that Wilson had a volatile temperament and was quick to anger. Thus, we conсlude that “[v]arious inferences as to premeditation or the lack thereof could reasonably be drawn from the circumstances of [Ms. Clybum’s] death.”
Henderson v. United States,
II.
Wilson also contends that the trial court committed error when it denied his request to introduce evidence to suggest that a third-party might have committed the murder. We disagree. “[A] trial court ruling that certain evidence is not relevant or probative is a highly discretionary decision which will be upsеt on appeal only upon a showing of grave abuse.”
Gethers v. United States,
Wilson attempted to introduce evidence that on September 10, 1994, three days before the murder of Ms. Clybum, a sexual assault occurred in Rock Creek Park near thе Park Road tennis courts. During that assault, which took place at approximately 2:80 a.m., a woman was abducted at gunpoint from 14th and Newton Streets, N.W., by a man speaking with a Nigerian accent. The assailant drove the woman around in his car for one half hour, and then took her to the Park Road tennis courts where he forced her to perform oral sex. He also threatened that he would make her marry him in order that he may obtain a green card. The victim in
Wilson argues that evidence of the tennis court incident should have been admitted to show that the assailant in that assault was possibly the same assailant in this ease. The trial court rejected Wilson’s argument, and ruled thаt the evidence had “slight or nonexistent probity” which would be substantially outweighed by its prejudicial impact. The trial court ruled that Wilson’s third-party culpability evidence would not survive under the “clearly linked” test of the so-called Brownr-Beale principle. 5 The triаl court also suggested that Wilson’s proffer would not survive a “watered down” version of the Brown-Beale principle which the court suggested was “whether the evidence would tend to raise a reasonable doubt.”
In
Winfield v. United States,
The third-party evidence proffered by Wilson does not “tend to indicate some reason able possibility that a person other than defendant cоmmitted the charged offense.” Winfield, supra, 676 A.2d at 5 (internal quotations omitted) (emphasis in original). In fact, the earlier attack in Rock Creek Park occurred in a different location and manner. First, in the tennis court incident, the victim was abducted аnd sexually assaulted. In this case, there was no evidence of an abduction, and the DNA evidence demonstrated that ' only Wilson had sexual contact with Ms. Cly-bum. Second, in the tennis court incident, the victim was attacked at gunpoint, whereas, Ms. Clybum was stabbed repeatedly with a knife and bludgeoned to death with a metal pipe. Third, the tennis court attack occurred inside a parked car. There was overwhelming evidence that Ms. Clyburn was beaten outside the ear, and her body dragged several yards across a parking lot and up a hill. Based upon these factors, we are not convinced that the trial court abused its discretion in excluding Wilson’s proffer of third-party culpability еvidence.
Accordingly, for the foregoing reasons, the judgments of the trial court are affirmed.
Affirmed.
Notes
. Wilson was charged by indictment with one count of first degree murder while armed, in violation of D.C.Code §§ 22-2401, and -3202 (1996); one count of rape while аrmed, in violation of D.C.Code §§ 22-2801, and -3202; one count of felony murder while armed, in violation of D.C.Code §§ 22-2401, -3202; and one count of carrying a dangerous weapon, in violation of D.C.Code § 3204(a). The jury acquitted him of these charges.
For the second degree murder conviction, Wilson was sentenced to serve fifteen years to life in prison.
. Appellant Wilson lived on Euclid Street in a one bedroom apartment with Elise Clybum, Dar.lene Adams, and four children. Elise Clybum was Wilson’s girlfriend and shared the bedroom with him. Darlene Adams, the mother of Wilson’s children, slept in the living room with the kids. Both Wilson and Ms. Adams were hearing-impaired, and often communicated through sign language, although Wilson had a hearing aid and could speak.
. In thе months before her murder, Ms. Clybum had gained substantial weight, and told Wilson that she could not have intimate relations with him because she was pregnant, even though she was not.
. Wilson also places considerable emphasis on the fact that the prosecutor argued elements of first degree murder, premeditation and deliberation, in his opening and closing statements. However, as the jury was properly instructed in this case, statements and arguments of counsel are not evidence. Criminal Jury Instructions For The District of Columbia, No. 2.05 (4th ed.1993).
. Under this principle, "before evidence of the guilt of another can be deemed relevant and thereby admissible, the evidence must clearly link that other person to the commission of the crime.”
Brown v. United States,