Government of the Virgin Islands v. Raphello Harris, Sr., Appellant, 938 F.2d 401 (3d Cir. 1991)

Raphello Harris, Sr. was convicted of murder in the first degree and possession of a dangerous weapon during the commission of a crime of violence. On appeal he contends that there was insufficient evidence to establish the corpus delicti for the jury's verdict of murder in the first degree, or to support the jury's verdict of possession of a dangerous weapon. He also maintains that this evidence was inadmissible. In addition, he states that the district court erred in admitting evidence of his past acts of violence toward the victim, his ex-wife. We will affirm.

On August 14, 1989, Judith Harris left St. Kitts, West Indies by airplane and arrived at the Cyril E. King Airport in St. Thomas, Virgin Islands. She has not been seen nor heard from since.

Mrs. Harris often travelled between St. Kitts and the Virgin Islands because her former husband, Raphello Harris, Sr., and her son, Raphello Harris, Jr., age 18, lived in St. Thomas and because occasionally she worked there. Mrs. Harris and the Harris's other three children lived in St. Kitts in a home owned by Mr. Harris. The Harris's marriage ended on March 14, 1989 in an uncontested divorce that had been initiated by Mr. Harris.

Mrs. Harris was scheduled to arrive at St. Thomas on August 15, 1989 and to stay with a family member. Instead, she arrived on August 14, carrying with her a number of packages for several people in St. Thomas from their relatives in St. Kitts. Raphello Harris, Jr. was unaware that his mother was arriving a day earlier than she had told him.

On the morning of August 14, 1989, Mr. Harris, a construction contractor, drove Raphello Harris, Jr., who had recently begun to work with him, to their jobsite in Annas Retreat, St. Thomas. The jobsite was within eyesight and walking distance of an apartment maintained by Mr. Harris on the ground floor of a private home. Mrs. Harris sometimes stayed in this apartment when she visited St. Thomas.

According to Raphello Harris, Jr., Mr. Harris soon left the jobsite with the stated purpose of buying building materials. While driving, Mr. Harris happened to see a friend and offered him a ride to the airport, where the friend worked. The friend testified that Mr. Harris's stated trip into town was to purchase building materials. Mr. Harris drove his friend to the entrance of the airport at approximately 12:15 p.m. and then departed.

At approximately 1:25 p.m., Elita Woods drove to the airport to meet a cousin who was to have been travelling with Mrs. Harris from St. Kitts to St. Thomas. Ms. Woods testified that as she approached the airport terminal she saw Mr. Harris sitting in plain view in a cafe located immediately opposite the entrance of the airport terminal. Upon learning that the airline flight from St. Kitts was delayed, Ms. Woods drove back to her job nearby. She later returned to the airport at approximately 1:50 p.m. and saw Mr. Harris sitting on a bench in the area of the terminal where passengers can be seen disembarking from the flights.

Ms. Woods said that she asked Mr. Harris if Mrs. Harris had arrived but he did not respond. Later she asked if the flight had arrived and he responded that the plane had just landed and was taxiing. After their conversation she moved away from where Mr. Harris was sitting and did not see him again.

About ten minutes later, Mrs. Harris deplaned and, in the midst of a conversation with Ms. Woods, asked if she had seen Mr. Harris. Ms. Woods responded that Mr. Harris was in the airport. Ms. Woods testified, however, that she never saw Mr. and Mrs. Harris together and informed Mr. Harris of this when he stopped by her house on September 3, 1989 and asked her if she had seen him take Mrs. Harris from the airport. In response to his questions she also stated that although she had heard a "rumor" that his ex-wife was missing, she had not heard that he was implicated. Mr. Harris ended the conversation on September 3 by saying that his ex-wife had caused him "a lot of problems" and "he didn't care" whether or not they found her.

Raphello Harris, Jr., testified that on August 14, 1989, he left his jobsite and arrived at his father's apartment at around 3:30 p.m. in order to change his clothes before going to his part-time job at a local restaurant. Mr. Harris said that he and his son had arranged beforehand to meet at the apartment so that he could drive his son to work.

Raphello Harris, Jr. gave varying testimony on direct and cross examination that when he arrived at the apartment, Mr. Harris, who never returned to the construction jobsite that day, was either in the midst of mopping the bedroom floor, had just completed mopping the floor, or was taking a mop to the front door. He also observed that Mr. Harris was sweating heavily and "looked like he was crying." He stated further that Mr. Harris remained seated on a homemade bed while he was dressing, which at the time he thought unusual. Raphello Harris, Jr. testified that his father's pant's leg either appeared to have bloodstains, be wet, or have a whitish stain. However, his father showed no scratches, marks, cuts, or any other signs of injury, nor did he complain of any injury.

Raphello Harris, Jr. testified that he never saw his mother in the family apartment on August 14, 1989 or thereafter. When he did not see his mother return to St. Thomas as scheduled on August 15, 1989, he waited a few days before he called his older sister, Marcia Harris, age 20, in St. Kitts to inquire. He learned then, for the first time, that Mrs. Harris had left St. Kitts on August 14, 1989.

On August 19, 1989, Raphello Harris, Jr. returned to his father's apartment and, upon entering, detected a strong scent of blood. He also observed what appeared to be blood spots on the bathroom wall, on the shower curtain, and on the floor around the bed. Upon removing the mattress from the wood box frame of the bed that was also used as a storage chest, he observed that the interior of the chest was filled with blood. Furthermore, two sheets that usually covered the bed were missing.

Raphello Harris, Jr. returned to the apartment on August 22, 1989 and found in a bag a pair of Hawaiian pants and underwear that he thought belonged to his mother. When he spoke to his sister in St. Kitts, she informed him that she had packed the Hawaiian pants and underwear in her mother's luggage before her mother left St. Kitts on August 14, 1989. She also said that her mother left with several packages to deliver to friends in St. Thomas, including one package for Althea Richards that contained some medicine from her relatives in St. Kitts. Mrs. Richards testified that on August 18, 1989, Mr. Harris delivered the package containing medicine to her home.

On August 25, 1989, according to Raphello Harris, Jr. or on September 1, 1989, according to his friend, Raphello Harris, Jr. and his friend returned to the apartment and took pictures of what they believed were bloodstains on the bed (although the friend added that the photographed substance also appeared to be either red stains or mahogany paint). They delivered the film to the Virgin Islands Police Department whereupon a search warrant was executed for Mr. Harris's house on September 5, 1989. Several items that were seized and sent to the F.B.I. for analysis contained human blood. Neither the pants nor underwear (which were gone when Raphello Harris, Jr. returned to the apartment), nor blood matching, nor any knife or other dangerous weapon was offered into evidence.¹ 

According to Detective Reynold Fraser, on September 4, 1989, Mr. Harris called him at the Virgin Islands Police Department's Investigation Bureau and asked to meet him alone in a parking lot. When they met, Mr. Harris said that he had killed Mrs. Harris by accident after picking her up at the airport and confronting her at his home about her relationship with another man in St. Kitts. Mr. Harris said that he held a knife to Mrs. Harris's throat in order to force her to tell the truth. When she told him that she could have any man she wanted, he said that he then realized that he had just killed her with the knife. Mr. Harris stated that the police would never find Mrs. Harris's remains. However, Mr. Harris did not sign a statement and Detective Fraser did not arrest him. On September 10, 1989, Detective Fraser wrote a report documenting Mr. Harris's statement.

The police also made efforts to determine if Mrs. Harris had left St. Thomas after confirming through airline records that Mrs. Harris had arrived and deplaned in St. Thomas and had not made a reservation elsewhere on the same airline. Their investigation included developing a missing person flyer with a photograph of Mrs. Harris that they took to "numerous" airlines at the St. Thomas airport and also sent to the Virgin Islands Daily News. They also learned that Mrs. Harris's mother in St. Croix had not seen nor heard from her daughter. Similarly, a police investigation in St. Kitts in May 1990 turned up no evidence that she had been sighted. Nor was there evidence that her St. Kitts home had been damaged or that she had been injured by Hurricane Hugo in September, 1989.

On September 8, 1989, Detective Fraser encountered Mr. Harris at a laundromat, where Mr. Harris informed him that the police had found some of his ex-wife's blood and had also taken a knife during the execution of their search warrant of his residence. Although Mr. Harris did not tell Detective Fraser the location of his ex-wife's remains, he did say that the knife taken by the police was not the knife he used to kill his ex-wife.

Sometime in September, 1989, before Mr. Harris left the Virgin Islands to go to St. Kitts, Raphello Harris, Jr. and Marcia Harris met their father near a shopping center. According to their testimony, Mr. Harris asked his daughter why she was staring at him and his son responded that it was because of what he did. Mr. Harris then replied: "Because of what I did? You mean because I kill your mother? That's what you wanted me to say." Mr. Harris then started to cry saying that they knew what their mother "used to do" to him. At this point, an acquaintance approached and the conversation ended. Marcia Harris testified that soon thereafter, during a conversation with her father, she told him that regardless of what pain her mother might have caused him in the past, he "didn't have to do it that way." Mr. Harris responded that she wouldn't understand but that he respected how she felt.

According to Detective Fraser, Mr. Harris left the Virgin Islands for St. Kitts from September 16, 1989 to January 17, 1990 when the police investigation intensified. During his stay in St. Kitts, Mr. Harris had encounters with two witnesses. Janet Richardson, who knew the Harris's for several years, testified to seeing Mr. Harris attempt to strangle his ex-wife in 1984 and hearing him make violent threats to his ex-wife throughout their relationship. She testified that in September, 1989, while she was walking past Mr. Harris's home, he told her that "she was next." When she responded that he was a "murderer," she said that he turned around and smiled and went back inside his home. She explained that she thought that Mr. Harris made the comment because she had told some of Mr. Harris's friends that he had murdered his ex-wife, and that his friends had reported her comments to him. In October, 1989, Mr. Harris also talked with a woman who was taking care of his children and who had requested money to aid in their care. Mr. Harris asked her if his younger daughter had told her that he had killed his ex-wife and she responded no. Mr. Harris then said that "if he did it," nobody knew what he went through and that Marcia and Raphael Harris, Jr. had "let him down."

On January 19, 1990, Mr. Harris visited the Investigation Bureau and informed Detective Fraser that he had returned to St. Thomas to begin life anew and that he was "glad to know" that Mrs. Harris was out of his life. This time Detective Fraser was wearing a hidden tape recorder, but Mr. Harris denied having murdered his ex-wife.

Subsequently, according to Raphello Harris, Jr., Mr. Harris came to visit him. At that time, he told his father that, "no matter how long it takes," he intended to find his mother. Mr. Harris then asked him how was he going to find his mother when "she left here in fifteen pieces."

Other testimony, presented by six of the government's 17 witnesses (including Raphael Harris, Jr., Marcia Harris, and two police sergeants), disclosed evidence of Mr. Harris's violent acts toward Mrs. Harris as well as other marital disputes. The most recent incident was a heated quarrel in July, 1989, in St. Kitts, regarding Mr. Harris's missing deed and some insurance papers. Witnesses also testified that in 1984, in St. Kitts, Mr. Harris tried to strangle Mrs. Harris with a rope, that on another occasion he stabbed her with a knife, and that he committed other acts of physical abuse from 1982 to 1985. Moreover, in 1983, Mr. Harris evicted Mrs. Harris and their children from his home following a domestic argument. On one or more occasions in St. Kitts, Mr. Harris told Mrs. Harris that he would not kill her there because the laws in St. Kitts were too tough. Although no documented report about these violent episodes was ever made to the St. Kitts police apart from the time when Mr. Harris evicted his wife and children, one St. Kitts police officer testified that in May or June, 1986, Mrs. Harris reported her husband for beating her and threatening her life.

In turn, Raphello Harris, Jr. testified that Mrs. Harris had twice (in 1982 and 1986) abandoned both Mr. Harris and the children and that once Mr. Harris had to seek the assistance of the St. Kitts police department to locate her. Other testimony, however, indicated that Mrs. Harris left for fear that her husband might harm her.

On March 16, 1990, the Government of the Virgin Islands filed a two-count information charging Mr. Harris with murder in the first degree (count I) and possession of a dangerous weapon during the commission of a crime of violence (count II), in violation of V.I. Code Ann. tit. 14, Secs. 922(a) (1) and 2251(a) (2),²  respectively.

A jury trial commenced on July 9, 1990. At the close of the government's case and once again at the close of all the evidence, Mr. Harris moved for a judgment of acquittal under Fed. R. Crim. P. 29 on both counts on the basis that the government failed to establish a prima facie case. The motions were denied.

Mr. Harris was convicted of both counts and sentenced to life imprisonment without parole (first degree murder) and five years imprisonment (weapon possession). This appeal is based on the district court's denial of Mr. Harris's motions for judgment of acquittal and the court's "various procedural errors."

In reviewing the denial of a motion for judgment of acquittal based on insufficiency of the evidence, we "must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the Government, to uphold the jury's decision." Burks v. United States, 437 U.S. 1, 17, 98 S. Ct. 2141, 2150, 57 L. Ed. 2d 1 (1978) (citing Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942)); Government of the Virgin Islands v. Ramos, 730 F.2d 96, 98 (3d Cir. 1984). Considering the evidence in this light, together with "legitimate inferences to be drawn therefrom," we determine whether a rationale trier of fact could have found guilt beyond a reasonable doubt. United States v. McNeill, 887 F.2d 448, 450 (3d Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 1152, 107 L. Ed. 2d 1055 (1990); Government of the Virgin Islands v. Joseph, 770 F.2d 343, 345 (3d Cir. 1985). We review for abuse of discretion a decision on the admission of evidence under Fed.R.Evid. 403, see United States v. Driggs, 823 F.2d 52, 54 (3d Cir. 1987), and Fed.R.Evid. 404(b). See Government of the Virgin Islands v. Joseph, 685 F.2d 857, 860-61 (3d Cir. 1982).

Mr. Harris contends that the district court erred in denying his motion for judgment of acquittal and submitting the case to the jury because: (1) the government failed to establish the corpus delicti of the homicide; (2) Mrs. Harris's body was never found; (3) Mr. and Mrs. Harris were not seen together on the day that she was allegedly murdered; and (4) there was "plausible evidence" that Mrs. Harris voluntarily left the jurisdiction because she had left her family twice before. Mr. Harris also claims that the court erred in submitting to the jury the charge of possession of a dangerous weapon during the commission of a crime of violence. He states that no weapon of any kind was identified or admitted into evidence and the only reference to a weapon was Detective Fraser's statement describing his alleged conversations with Mr. Harris about a knife.

Mr. Harris also maintains that the court erred in admitting evidence of his past acts of threats or violence toward his ex-wife because the government did not establish that the alleged acts occurred or that Mr. Harris committed these acts. Furthermore, he asserts that the probative value of the acts was "far outweighed" by its prejudicial effects.

The government contends, however, that the facts and circumstantial evidence in this case established the corpus delicti for the charge of first degree murder. Moreover, Mr. Harris's "admissions both to the police and his children proved beyond a reasonable doubt that he killed [his ex-wife]." The government also claims that Mr. Harris's "admission of the means used to kill his ex-wife is corroborated by circumstantial evidence that there was a homicide and that he was the responsible party." For example, Raphello Harris, Jr.'s discovery of what appeared to be human blood on Mr. Harris's clothing and the subsequent discovery of human bloodstains on several items in Mr. Harris's home corroborated his admission that he held a knife to his wife's throat, killed her, and that she "left in fifteen pieces."

The government also maintains that the district court properly admitted evidence of Mr. Harris's prior acts against his wife to show Mr. Harris's motive for the killing and that Mrs. Harris's death did not result from an accident or suicide. Mr. Harris's statements in the past indicating that he would kill his wife in a place other than St. Kitts were also probative of his intent and preparation, as well as the background for the crime charged.

Viewing the evidence in the light most favorable to the government, we examine the parties' contentions based upon the direct and circumstantial evidence presented, and Mr. Harris's alleged admissions or exculpatory statements.

The corpus delicti, defined as "the body or substance of the crime charged," has two components: (1) an unlawful injury, and (2) an individual's unlawful conduct as a source of that injury. Establishing a corpus delicti requires proof that a specific injury, loss, or harm resulted, and that the injury was caused by a criminal agency rather than by an innocent or accidental one. See 1 C. Torcia, Wharton's Criminal Evidence Sec. 28 (14th ed. 1985 & Supp.1990); 7 J. Wigmore, Evidence Sec. 2071 (Chadbourn rev.ed. 1978 & Supp.1990).

To establish a corpus delicti, the government need only prove that a crime has been committed. United States v. Di Orio, 150 F.2d 938, 939 (3d Cir.), cert. denied, 326 U.S. 771, 66 S. Ct. 175, 90 L. Ed. 465 (1945). Identifying the defendant as the perpetrator of the crime is not required. See United States v. Wilson, 529 F.2d 913, 915 (10th Cir. 1976) (citing United States v. Charpentier, 438 F.2d 721, 725 (10th Cir. 1971)); Commonwealth v. Elder, 305 Pa.Super. 49, 51, 451 A.2d 236, 237 (1982). Moreover, proof of the corpus delicti may be based on circumstantial evidence. Di Orio, 150 F.2d at 941.

Most corpus delicti cases have involved homicides where, typically, the prosecution must show that: (1) a human being is dead (rather than simply disappeared, in those circumstances where no body has been produced, to ensure that the victim will not reappear alive and well at a later time); and (2) the death can be attributed to another's unlawful conduct (rather than by accident, suicide, or natural causes). W. LaFave & A. Scott, Criminal Law Sec. 1.4 (2d ed. 1986); 1 C. Torcia, supra Sec. 228.

Courts have relied on circumstantial evidence in proving the corpus delicti for first degree murder in both federal³  and state⁴  court cases, including the Virgin Islands. See, e.g., Government of the Virgin Islands v. Roldan, 612 F.2d 775, 781 (3d Cir. 1979) (noting that a first degree murder conviction under the Virgin Islands Code may be based on circumstantial evidence; "indeed, premeditation generally can be proved only by such evidence"), cert. denied, 446 U.S. 920, 100 S. Ct. 1857, 64 L. Ed. 2d 275 (1980); Government of the Virgin Islands v. Felix, 569 F.2d 1274, 1283 (3d Cir. 1978) (upholding first degree murder conviction based upon testimony including defendant's arguments and statements on the day of the shooting).

Historically, the corpus delicti doctrine incorporated the "almost-universal American rule" that in order to convict a defendant of a crime based upon an extrajudicial confession or admission,⁵  the defendant's statement must be corroborated by some evidence of the corpus delicti. W. LaFave & A. Scott, supra Sec. 1.4.⁶  The major purpose of this rule is to prevent "errors in conviction based upon untrue confessions alone." Warszower v. United States, 312 U.S. 342, 347, 61 S. Ct. 603, 606, 85 L. Ed. 876 (1941); see also Comments, Corroborating Confessions: An Empirical Analysis of Legal Safeguards Against False Confessions, 1984 Wis. L. Rev. 1121, 1155 (concluding that "physically uncoerced false confessions occur with sufficient regularity to justify prophylactic measures"). However, " [a] confession, especially one that survives the multiple attacks that can be made upon its admissibility, has traditionally been regarded as extraordinarily reliable evidence of the defendant's guilt." E. Cleary, McCormick on Evidence Sec. 144 at 364 (3d ed. 1984 & Supp.1987). Thus, the "high probative value" of a confession and the opportunities available to attack it at trial can support its admission into evidence. Id.

Most jurisdictions today follow the original corpus delicti doctrine requiring proof aliunde (from another source) that a crime has occurred. However, the federal courts and a number of state courts have adopted the "trustworthiness" doctrine that emphasizes the reliability of the defendant's confession over the independent evidence of the corpus delicti. Id Sec. 145. Under the "trustworthiness" doctrine, direct proof of the corpus delicti is not required; the evidence may even be collateral to the crime itself. "The corroboration, however, directly relates to the trustworthiness of the important facts contained in the defendant's statement, whereas the corpus delicti version is more concerned with the elements of the offense." B. Reeve, State v. Parker: North Carolina Adopts the Trustworthiness Doctrine, 64 N.C.L.Rev. 1285, 1291 (1986).⁷ 

The United States Supreme Court adopted the trustworthiness doctrine as the "best rule" in two companion cases: Opper v. United States, 348 U.S. 84, 75 S. Ct. 158, 99 L. Ed. 101 (1954) and Smith v. United States, 348 U.S. 147, 75 S. Ct. 194, 99 L. Ed. 192 (1954). In Opper, the Court rejected the original corpus delicti doctrine, holding instead that confessions, admissions, and exculpatory statements must be corroborated by "substantial independent evidence which would tend to establish the trustworthiness of the statement." 348 U.S. at 93, 75 S. Ct. at 164. The Court considered it to be "sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth." Id. By requiring the government to produce "substantial independent evidence," the Court used this evidence to serve a "dual function ... make the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense." Id.; see also E. Cleary, supra Sec. 145, at 371 (Under Opper and Smith, "the prosecution's use of a defendant's self-incriminating out-of-court statement, no matter how narrowly incriminating, should quite clearly not give rise to any broad duty such as that to establish by some sort of independent evidence all elements of the corpus delicti.").

Applying federal law, we adopted the trustworthiness doctrine in United States v. Wilson, 436 F.2d 122 (3d Cir.), cert. denied, 402 U.S. 912, 91 S. Ct. 1393, 28 L. Ed. 2d 654 (1971), where we held there was "substantial independent evidence" to corroborate the defendant's admission to a detective that he drove the automobile in question from Philadelphia to California. Id. at 124.

Since two parts of [the defendant's] admission were corroborated by other evidence, this established the trustworthiness of the entire admission and authorized the prosecutor to prove the element of interstate transportation solely by [the defendant's] admission that he drove [the car] from Philadelphia to California.... The corroborative evidence need not be sufficient, independent of the statements of the accused, to establish the corpus delicti, and what the government must do, in order to furnish sufficient corroboration, is to introduce substantial evidence which would tend to establish the trustworthiness of the statement.

Id. (citing Opper v. United States, 348 U.S. 84, 75 S. Ct. 158, 99 L. Ed. 101 (1954)); see also United States v. Felder, 572 F. Supp. 17, 22 (E.D. Pa.), aff'd, 722 F.2d 735 (3d Cir. 1983) (stating that corroboration may be established in a number of ways, including the "detailed nature of the confession itself, or in the recital of facts that would be unknown to anyone other than the criminal.") Under Opper, such proof must be shown beyond a reasonable doubt. 348 U.S. at 93, 75 S. Ct. at 164.

Both parties note that this is a case of first impression in the Virgin Islands. There is no reported first degree murder case where the body has not been found. The Virgin Islands statutes are also silent on whether a body must be found and identified to prove the corpus delicti of homicide although, as we have noted, a first degree murder conviction under the Virgin Islands Code may be based on circumstantial evidence. See Government of the Virgin Islands v. Roldan, 612 F.2d 775, 781 (3d Cir. 1979), cert. denied, 446 U.S. 920, 100 S. Ct. 1857, 64 L. Ed. 2d 275 (1980).

Absent governing statute or precedent, a "hierarchy of sources for Virgin Islands law" is found under V.I. Code Ann. tit. 1, Sec. 4 (1967).⁸  Edwards v. Born, Inc., 792 F.2d 387, 389 (3d Cir. 1986). Under Sec. 4, we look first to the common law rules set forth in the various Restatements. If no rules are available, we look next to the common law rules "as generally understood and applied in the United States." Id. See also Polius v. Clark Equipment Co., 802 F.2d 75, 77 (3d Cir. 1986) (Where the Virgin Islands "has no governing statute ... [and] [w]here the Restatement is silent and a split of authority exists, courts should select the sounder rule."). Therefore, in our analysis of this case and our application of the trustworthiness doctrine, we look to the common law rules.⁹  Furthermore, we explicitly adopt the trustworthiness doctrine in the Virgin Islands for evaluating the reliability of statements.

Historically, the production of the body of a missing person was generally not required under the common law in order to establish the corpus delicti for homicide. See Perkins, The Corpus Delicti of Murder, 48 Va. L. Rev. 173, 179 (1962). With few exceptions,¹⁰  this "no-body-required" rule applies today in both federal¹¹  and state law cases¹²  including Pennsylvania¹³  and New Jersey.¹⁴  See, e.g., St. Clair v. United States, 154 U.S. 134, 152, 14 S. Ct. 1002, 1009, 38 L. Ed. 936 (1894) (" [I]n cases of murder [where] the body is rarely, if ever, found, ... a more complete encouragement and protection for the worst offenses of this kind could not be invented than a rule of this strictness.").

One rationale provided for the "no-body-required" rule is that a murderer should not be entitled to acquittal simply because he successfully disposes of a victim's body. "That is one form of success for which society has no reward." People v. Manson, 71 Cal. App. 3d 1, 42, 139 Cal. Rptr. 275, 298 (2nd Dist.1977), cert. denied, 435 U.S. 953, 98 S. Ct. 1582, 55 L. Ed. 2d 803 (1978). Similarly, the "successful concealment or destruction of the victim's body should not preclude prosecution of his or her killer where proof of guilt can be established beyond a reasonable doubt." State v. Zarinsky, 143 N.J.Super. 35, 55, 362 A.2d 611, 621 (1976), aff'd 75 N.J. 101, 380 A.2d 685 (1977).

As our research has indicated, the "no-body-required" rule has steadfastly held in a variety of first degree murder convictions based entirely on circumstantial evidence. In State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236 (1988), for example, the evidence showed that the defendant, who made no admission, had a stormy marriage with his wife and that she had announced her intention of leaving him the night of her disappearance. Subsequent investigations showed human blood of the victim's type on the defendant's pants and other items as well as in and around the victim's car, which the defendant had abandoned. In contrast, in State v. Zarinsky, 143 N.J.Super., 362 A.2d 611, the defendant was a stranger to the 17-year-old victim that he had lured into his car. No physical evidence of the victim's presence could be linked to the defendant apart from some of the victim's possessions (such as hairclips) that were found in his car. However, the defendant stated to cellmates that the victim would never be found because he had thrown her body into a river. Moreover, four witnesses testified to seeing the victim in the defendant's car.

In general, our review has shown a wide range in the types of relationships between defendants and victims, in addition to defendants' personal histories and motives and the extent of circumstantial evidence admitted into trial to support a jury verdict. Consistent with prior case law, we hold that neither the body of the missing person nor evidence of the method used to produce death is required to establish the corpus delicti or to sustain a murder conviction. See People v. Scott, 274 Cal. App. 2d 905, 79 Cal. Rptr. 587 (2nd Dist.1969).

In this case, the government sought to prove the corpus delicti for first degree murder by introducing evidence based on the testimony of many different witnesses. In line with our jurisprudence for reviewing the denial of a motion for a judgment of acquittal, we note that such evidence need not "be inconsistent with every conclusion save that of guilt if it establishes a case from which the jury can find the defendant guilty beyond a reasonable doubt." United States v. Leon, 739 F.2d 885, 891 (3d Cir. 1984) (citing United States v. Allard, 240 F.2d 840, 841 (3d Cir.), cert. denied, 353 U.S. 939, 77 S. Ct. 814, 1 L. Ed. 2d 761 (1957)); United States v. Cooper, 567 F.2d 252, 253 (3d Cir. 1977) (referring to the Glasser and Allard standards of reviewing evidence). Any failure by the prosecutor in meeting this standard must be "clear." Leon, 739 F.2d at 891 (citing Burks v. United States, 437 U.S. 1, 17, 98 S. Ct. 2141, 2150, 57 L. Ed. 2d 1 (1977)).

In People v. Bolinsky, 260 Cal. App. 2d 705, 67 Cal. Rptr. 347 (4th Dist.1968), the court emphasized that the evidence need not negate alternative explanations of the victim's disappearance, only that occurrence of the victim's death could be "reasonably inferred."

The presence or absence of a particular item of evidence is not controlling. The question is whether from all the evidence it can reasonably be inferred that death occurred and that it was caused by a criminal agency.... The foundational evidence necessary to establish corpus delicti need not eliminate possible noncriminal explanation of the victim's disappearance.... The foundation may be laid by the introduction of evidence which creates a reasonable inference that the death could have been caused by a criminal agency, even in the presence of an equally plausible noncriminal explanation of the event.

Id. at 716, 67 Cal. Rptr. at 354 (citation omitted).

Viewing all the evidence in the light most favorable to the government and the corresponding inferences to be drawn, we hold that the evidence was sufficient to be admitted and for a rational trier of fact to have found Harris guilty of first degree murder beyond a reasonable doubt. We base our decision on the following evidence.

Mrs. Harris left St. Kitts on August 14, 1989 and arrived safely that same day at the Cyril E. King Airport in St. Thomas, Virgin Islands. There was evidence that Mr. Harris was at the airport waiting for Mrs. Harris's arrival. An eye witness testified that she met and spoke with Mrs. Harris directly after she had deplaned and that Mrs. Harris had asked her whether Mr. Harris was present. The witness informed her that Mr. Harris was in the waiting area where the witness had spoken with him earlier. Mr. Harris later questioned the eye witness about whether she had seen him at the airport with his ex-wife. A friend of Mr. Harris's also testified that on August 14, 1989, Mr. Harris drove him to the entrance of the airport after having seen him walking on the highway.

No one has seen nor heard from Mrs. Harris since her arrival at the airport, and the police found no evidence that she left St. Thomas. The police also found no evidence of Mrs. Harris's whereabouts in their search for her at the airport through missing person flyers, in their notice in the Virgin Island Daily News, or in their search at St. Kitts. Apart from two instances in the past where it appeared that Mrs. Harris was avoiding her husband, she regularly maintained contact with her children, other family, and friends.

Mrs. Harris's disappearance was inconsistent with her future plans and obligations. Mrs. Harris was carrying packages from St. Kitts that she had planned to deliver to various persons in St. Thomas. Instead, Mr. Harris delivered those packages. Mrs. Harris also told her daughter that she was going to St. Thomas to work and that she intended to purchase certain items for her children still living in St. Kitts.

There was evidence that Mrs. Harris had been at Mr. Harris's apartment after she arrived at the airport. Mr. Harris told Detective Fraser that he had picked up his wife at the airport and taken her to the apartment. Moreover, Mrs. Harris's Hawaiian pants and underwear that her daughter had packed in her suitcase in St. Kitts were observed by Raphello Harris, Jr. at his father's apartment approximately one week after Mrs. Harris's arrival. Raphello Harris, Jr. could not find the pants or underwear, however, when he later returned.

Mr. Harris's behavior was unusual on August 14, 1989. Raphello Harris, Jr. testified that his father left the jobsite for the stated purpose of buying supplies although he never returned to the site later that day as he had promised. When Raphello Harris, Jr. showed up at his apartment, his father was sweating heavily, looked as though he had been crying, and appeared to be in the process of mopping the floor. Raphello Harris, Jr. also thought it unusual for his father to remain seated on the bed in the apartment as he dressed for work.

Blood was observed in Mr. Harris's apartment. Raphello Harris, Jr. testified that he saw blood on Mr. Harris's pants on August 14, 1989. When he returned to the apartment several days later, he smelled blood and discovered blood on the bathroom wall, the shower curtain, and in the storage area of the bed. Moreover, the bloodstained bottom portion of the bed that Raphello Harris, Jr. had observed initially was removed and a fresh bottom inserted when he subsequently returned with the police. The FBI's tests showed that a number of items in the apartment contained human blood.

Mr. Harris made highly incriminating statements to his children, to Detective Fraser, and to others. In a conversation with Detective Fraser, Mr. Harris admitted picking his wife up at the airport, taking her to his apartment, and holding a knife to her throat while questioning her about her relationship with another man. The next thing he knew he had killed her. Mr. Harris also told Raphello Harris, Jr. that Mrs. Harris would never be found because she "had left here in fifteen pieces."

Mr. Harris had a history of verbal threats and violence toward Mrs. Harris. On one or more occasions in St. Kitts, Mr. Harris had told his wife that he would not kill her there because the laws in St. Kitts were too tough. Witnesses also testified that in 1984, Mr. Harris had tried to strangle his wife, that he had stabbed her with a knife on another occasion, and that he had committed other acts of physical abuse from 1982 to 1985. The most recent incident was a heated quarrel in July, 1989.

We note that comparable types of evidence have been found significant in prior "no-body-required" case law, including: (1) presence of blood or bloodstains at the site of the murder, see, e.g., People v. Cullen, 37 Cal. 2d 614, 234 P.2d 1 (1951); People v. McMonigle, 29 Cal. 2d 730, 177 P.2d 745 (1947); People v. Faulkner, 186 Ill.App.3d 1013, 134 Ill.Dec. 683, 542 N.E.2d 1190 (1989); (2) presence of blood on the defendant's pants, see, e.g., State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236 (1988); Arnold v. State, 803 P.2d 1145 (Okla.Crim.1990); (3) attempts to remove blood or bloodstains through cleaning or sanding, see, e.g., Cullen, 37 Cal. 2d 614, 234 P.2d 1; State v. Lung, 70 Wash. 2d 365, 423 P.2d 72 (1967); (4) defendant's statements about "cutting up" the body in pieces, see, e.g., People v. Manson, 71 Cal. App. 3d 1, 139 Cal. Rptr. 275 (2nd Dist.1977), cert. denied, 435 U.S. 953, 98 S. Ct. 1582, 55 L. Ed. 2d 803 (1978); People v. Curro, 161 A.D.2d 784, 556 N.Y.S.2d 364 (2d Dept), appeal denied, 76 N.Y.2d 855, 560 N.Y.S.2d 994, 561 N.E.2d 894 (1990); Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552 (1963); (5) history of an unstable, stormy, or violent relationship between defendant and victim-wife, see, e.g., People v. Modelski, 164 Mich.App. 337, 416 N.W.2d 708 (1987), appeal denied, 1987 WL 24489, 1988 Mich. LEXIS 836 (1988); Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236; Rawlings v. State, 740 P.2d 153 (Okla.Crim.1987); (6) defendant's statements concerning victim-wife's alleged infidelity, see, e.g., People v. Modelski, 164 Mich.App. 337, 416 N.W.2d 708, or relationships with other men, see, e.g., State v. Rebeterano, 681 P.2d 1265 (Utah 1984); (7) evidence that the victim was a caring mother who was thought unlikely to leave her children, see, e.g., State v. Hicks, 495 A.2d 765 (Me.1985); (8) defendant's relief or satisfaction at the victim-wife's disappearance, see, e.g., People v. Scott, 176 Cal. App. 2d 458, 1 Cal. Rptr. 600 (2nd Dist.1959), cert. denied, 364 U.S. 471, 81 S. Ct. 245, 5 L. Ed. 2d 222 (1960); and (9) evidence of an extensive search to find the victim, see, e.g., Commonwealth v. Smith, 523 Pa. 577, 568 A.2d 600 (1989), later appealed, --- Pa.Super. ---, 591 A.2d 730 (1991) (nationwide FBI search).

In most of the cases we reviewed, the court emphasized the defendant's admissions or statements, the victim's normal mental and physical health to negate any suggestion that the disappearance was due to a suicide or natural causes, as well as the victim's failure to maintain habits and regular contact with family and friends, or attendance at work, planned engagements, and activities. See, e.g., Hurley v. State, 60 Md.App. 539, 483 A.2d 1298 (1984) (disruption of habit evidence is "essential" where no body is found).

We find particularly significant the disruption of Mrs. Harris's habits and plans, such as her promise to deliver packages upon her arrival at St. Thomas as well as her failure to maintain regular contact with family members and friends. This evidence negates the possibility that Mrs. Harris may have abandoned her family.

Worldwide communication and travel today are so facile that a jury may properly take into account the unlikelihood that an absent person, in view of his health, habits, disposition and personal relationships would voluntarily flee, "go underground," and remain out of touch with family and friends. The unlikelihood of such a voluntary disappearance is circumstantial evidence entitled to weight equal to that of bloodstains and concealment of evidence.

Epperly v. Commonwealth, 224 Va. 214, 228-29, 294 S.E.2d 882, 890 (1982) (citing Regina v. Onufrejczyk, 1 Q.B. 388 (1955) (stating that in modern times there is less rationale for strictness in the proof that a dead body exists as compared to two centuries ago where a person who travelled or left an area would be less able to communicate) (citing 2 M. Hale, Pleas of the Crown 290 (1736)).

Given the testimony presented and the inferences that can be drawn, we conclude there was sufficient evidence to support the district court's denial of Mr. Harris's motion for a judgment of acquittal and for the jury's verdict of first degree murder. Furthermore, we believe there was sufficient circumstantial evidence to support the jury's verdict apart from any admissions or statements made by Mr. Harris.

Mr. Harris contends that there was inadmissible or insufficient evidence to support the jury's verdict of possession of a dangerous weapon during the commission of a crime of violence¹⁵  because there was only "a brief reference to a weapon during the entire trial." He maintains that this reference was based solely on his allegedly uncorroborated admission to Detective Fraser on September 8 that a knife confiscated by police investigators was not the knife he used to kill his ex-wife.

We disagree. Although the alleged murder weapon was never recovered, Mr. Harris's statements concerning the means he used to kill his ex-wife are corroborated by circumstantial evidence that there was a homicide and that he was the perpetrator. For example, Mr. Harris's statement to Detective Fraser that he went to the airport to pick up his ex-wife is corroborated by an eyewitness who spoke with him there. Raphello Harris, Jr.'s testimony concerning what appeared to be blood on his father's pants and the subsequent finding of human bloodstains on a number of the items in Mr. Harris's home corroborated his statements to Detective Fraser that he held a knife to his wife's throat and killed her. Furthermore, Mr. Harris's statement to his son that his ex-wife would never be found because she "left in fifteen pieces" demonstrated a knowledge of details of the crime not revealed by anyone else and the means by which the crime was committed. See, e.g., United States v. Felder, 572 F. Supp. 17, 22 (E.D. Pa.), aff'd, 722 F.2d 735 (corroboration may be established by providing facts that would be unknown to any one else but the perpetrator). Thus, we conclude that Mr. Harris's statement to Detective Fraser was corroborated by "substantial independent evidence which would establish the trustworthiness of the statement." Opper v. United States, 348 U.S. 84, 93, 75 S. Ct. 158, 164, 99 L. Ed. 101 (1954).

We also note that we have sustained convictions of first degree murder and possession of a weapon on similar types of circumstantial evidence. See, e.g., Government of the Virgin Islands v. Rosado, 699 F.2d 121, 126 (3d Cir.) (evidence presented by various witnesses could sustain the defendant's convictions of first degree murder and possessing a firearm during the commission of a crime of violence), cert. denied, 464 U.S. 832, 104 S. Ct. 113, 78 L. Ed. 2d 114 (1983); see also Government of the Virgin Islands v. Commissiong, 706 F. Supp. 1172, 1183-84 (D.C.V.I.1989). As we have documented, in most "no-body-required" state law cases, no weapon is ever recovered and the means of producing death cannot be definitely determined. In People v. Scott, 274 Cal. App. 2d 905, 79 Cal. Rptr. 587 (2nd Dist.1969), for example, the defendant made various incriminating statements about his wife's disappearance, including an admission to his stepson that he had shot his wife in the back of the head. Further testimony indicated that he had buried a large, heavy box on the day of his wife's disappearance. However, no box or weapon were ever recovered. See also State v. Hicks, 495 A.2d 765 (Me.1985) (sustaining murder conviction although no weapon, bloodstains, or evidence of a struggle or means of death were found after wife's disappearance and defendant made no admission).

In this case, then, we hold that there was "substantial independent evidence" to present the weapons charge to the jury and to support the verdict. Moreover, this determination comports with our holding that evidence of the means used to produce death need not be shown to sustain a murder conviction.

Mr. Harris contends that the district court erred when it admitted evidence of his prior acts because they were too remote in time, they occurred in another country, and they were unduly prejudicial under Fed.R.Evid. 403. Fed.R.Evid. 404(b) permits evidence of other acts in order to prove motive or intent.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Fed.R.Evid. 404(b).

We have held that Fed.R.Evid. 404(b) generally prohibits evidence of extrinsic acts that are intended to show a defendant's propensity for crime or to suggest pejorative inferences that may reflect upon a defendant's character. United States v. Scarfo, 850 F.2d 1015, 1018-19 (3d Cir.), cert. denied, 488 U.S. 910, 109 S. Ct. 263, 102 L. Ed. 2d 251 (1988); see also Government of the Virgin Islands v. Toto, 529 F.2d 278, 283 (3d Cir. 1976) (stating our refusal "to admit evidence of prior criminal acts which has no purpose except to infer a propensity or disposition to commit crime"). We have recognized, however, that relevant evidence that could possibly harm the defendant is not inadmissible solely because of its potentially negative effects. If offered for a proper purpose and for a material issue apart from character under Fed.R.Evid. 404(b), other-acts evidence is subject only to the typical limitations under Fed.R.Evid. 402 and 403. Scarfo, 850 F.2d at 1019 (citing Huddleston v. United States, 485 U.S. 681, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988)).

In view of these considerations, the Supreme Court has provided guidance to admit evidence under Fed.R.Evid. 404(b). The other-acts evidence must: (1) have a proper purpose; (2) be relevant; (3) have a probative value that outweighs its potential for unfair prejudice; and (4) be accompanied by a court's charge to the jury to consider it only for the limited purpose for which it is being admitted. Huddleston v. United States, 485 U.S. 681, 691-92, 108 S. Ct. 1496, 1501-02, 99 L. Ed. 2d 771 (1988).

The drafters intended that Fed.R.Evid. 404(b) be construed as a rule of "inclusion" rather than one of "exclusion" in order to emphasize the admissibility of other-acts evidence. United States v. Long, 574 F.2d 761, 766 (3d Cir.), cert. denied, 439 U.S. 985, 99 S. Ct. 577, 58 L. Ed. 2d 657 (1978); see also United States v. Pungitore, 910 F.2d 1084, 1149-50 (3d Cir. 1990) (admitting a taped conversation to show the relationships among co-conspirators), cert. denied, --- U.S. ----, 111 S. Ct. 2009, 114 L. Ed. 2d 98 (1991); United States v. O'Leary, 739 F.2d 135, 136 (3d Cir. 1984) (admitting other-acts evidence to provide background information and parties' acquaintanceship), cert. denied, 469 U.S. 1107, 105 S. Ct. 782, 83 L. Ed. 2d 776 (1985); United States v. Simmons, 679 F.2d 1042, 1050 (3d Cir. 1982) (admitting other-acts evidence occurring before the crime at issue to establish background information and a continuing relationship between the defendants), cert. denied, 462 U.S. 1134, 103 S. Ct. 3117, 77 L. Ed. 2d 1370 (1983); see also United States v. Jordan, 722 F.2d 353, 356 (7th Cir. 1983) (referring to the various circuits that have admitted evidence of prior bad acts when those acts have explained the circumstances, background, or development of the crime charged, or "completed the story of the crime on trial").

Apart from meeting the standard of Fed.R.Evid. 404(b), however, other-acts evidence must be also be evaluated against the unfair prejudice standard of Fed.R.Evid. 403. Thus, a court may exclude logically relevant other-acts evidence if its probative value is substantially outweighed by the risk of undue prejudice. Scarfo, 850 F.2d at 1019; United States v. Driggs, 823 F.2d 52, 54 (3d Cir. 1987). We have emphasized, however, the need for "judicial restraint" when an appellate court is reviewing a trial court's Rule 403 analysis. Long, 574 F.2d at 767. See e.g., United States v. Dansker, 537 F.2d 40, 58 (3d Cir. 1976) (upholding district court's admission of other-acts evidence describing a relationship between the witness and the defendants), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977).

We believe that the district court properly admitted evidence of Mr. Harris's prior acts, particularly his history of violence toward Mrs. Harris. Testimony about Mr. Harris's attempts to strangle and stab Mrs. Harris were highly probative in demonstrating his motive and intent as well as establishing that his wife's death was not accidental or suicidal. Moreover, Mr. Harris's statements that he would kill Mrs. Harris in a place other than St. Kitts were probative of Mr. Harris's intent, preparation, and the development of the crime charged. It also tended to prove that Mrs. Harris did not simply disappear from the area voluntarily.

Our primary inquiry, then, is whether the other-acts evidence "is probative of a material issue other than character." Huddleston v. United States, 485 U.S. at 686, 108 S. Ct. at 1499. We agree with the district court that the other-acts evidence was relevant, probative of many proper purposes, and not unfairly prejudicial. We find no abuse of discretion under Rule 403.

We will affirm the district court's denial of Mr. Harris's motion for acquittal. We hold that there was sufficient evidence to establish the corpus delicti for the jury's verdict of murder in the first degree and of possession of a dangerous weapon during the commission of a crime of violence. Moreover, the district court properly admitted evidence of Mr. Harris's past acts of violence toward the victim.