Bernard A. Johnson v. United States

275 F.2d 898, 107 U.S. App. D.C. 234, 1960 U.S. App. LEXIS 5183

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 10, 1960
• Docket: 15343_1
• Status: Published

Opinions

BURGER, Circuit Judge.

We granted an appeal at government expense to review appellant’s conviction for robbery under D.C.Code § 22-2901 (1951). A co-defendant, Calvin Johnson, did not appeal.

The evidence in the case is singular in several respects; first there were eyewitnesses who came on the scene as the assault on the victim was taking place; secondly the witnesses were police officers who immediately apprehended two of the three assailants, one of them the appellant. Hence no problem of identification of appellant exists.

Two police officers testified they were cruising in the 500 block of 4th Street, S. W. at about midnight when their headlights fell on two men engaged in holding another on the sidewalk while a third was going through the pockets of the victim. As the police car turned into the scene, one attacker, who had been rifling the victim’s pockets, fled and was not apprehended. Police picked up the other two; one of them, Calvin Johnson, was convicted along with appellant but did not appeal.

Police found the victim, James Davis, unconscious and bleeding. On recovering he said he had been walking down the street and on turning to see who was approaching him he was struck down and knocked unconscious. He was bleeding from wounds about his mouth. He could not identify the attackers. Later at the police station Davis told police he had been robbed of $39.

Appellant and Calvin Johnson at the scene told officers they were simply walking down the street when they discovered Davis lying prone on the sidewalk and stopped because they were “just curious to see why he was there.” Calvin Johnson’s knuckles had a fresh cut which he said he had suffered by hitting them on a lamppost.

Appellant and his companion were taken to the police station, searched and booked on a charge of investigation of robbery. No money was found on them. About an hour after their detention, appellant and Calvin Johnson gave a different account of the events. According to this second version they were walking behind Davis when the latter suddenly turned on them belligerently, asking “What are you following me for.” Davis then advanced on them threateningly but suddenly fell to the ground, injuring his mouth. Appellant and Calvin Johnson said no other person was present.

At trial still a third version of events was given by the appellant. In this version appellant said Davis came up behind them and bumped them and began an argument, struck at appellant and fell to the sidewalk as he did so. Appellant said they were simply departing to avoid trouble when the police came.

The testimony of the police is in direct conflict with all versions of the events given by appellant and his co-defendant. The disputed issues of fact were submitted to the jury under proper instructions and a verdict of guilty was returned. Each of the co-defendants was sentenced 2 to 6 years.

The issues raised on this appeal as now disclosed by the full record before us are so insubstantial as not to warrant extended discussion. Only two need be mentioned. The admission of appellant’s statement to police at the precinct station about an hour after being booked is assigned as error under Rule 5(a), Fed.R.Crim.P., 18 U.S.C. However, no objection was made by the defense when these statements were offered. Gilliam v. United States, 1958, 103 U.S.App.D.C. 181, 257 F.2d 185, certiorari denied 1959, 359 U.S. 947, 79 S.Ct. 728, 3 L.Ed.2d 680. They were merely statements by which appellant and his co-defendant sought to exculpate themselves and indeed were utilized by appellant to try to make out a theory of “self-defense.” They were so similar to other statements relied upon by appellant that, in any event, their admission did not amount to prejudicial error, if arguendo, it was error.

Another assigned error is the prosecution’s closing argument in which the government characterized the defense in the following terms:

“In other words, these two men [defendants] thought they were in danger of serious bodily harm, and for that reason they struck and knocked this man down * * * and walked away and left him there.”

Appellant immediately objected, pointing out that no one testified to witnessing an actual blow struck in self-defense. The court sustained the objection and ordered the statements stricken. The prosecutor then disclaimed to the jury any intent to mislead, claiming he was merely

“relying on the logical inference in the case. They [defendants] did not make a statement that they struck this man in self-defense or they were in fear of bodily harm, and I did not intend to convey that to you, ladies and gentlemen. It was only inference I was trying to say could be drawn therefrom. But I think the testimony is that they struck the man. He did fall to the street, and they left him there.”

No further objection was taken by defense counsel.

These latter statements to which no objection was made do not amount to reversible error. Moreover, the prosecutor’s language was plainly nothing more than an expression of his opinion about the content of the evidence, “But I think the testimony is * * (Emphasis added.) The record as a whole fully warrants a conclusion that some person or persons “struck the man” knocked him down and some persons, namely the co-defendants, held him while the unidentified elusive confederate rifled the victim’s pockets. It was in this latter posture that appellant and his co-defendant were seen by the police officers under their headlights only seconds before they were apprehended; and as we noted, when apprehended, one of the co-defendants was found to have a fresh cut on his knuckles and the victim bleeding from fresh cuts about his mouth.

Other assigned errors are too insubstantial to warrant comment; some were not made the subject of timely objections and are not of a character to warrant review as “plain error” under Rule 52 (b), Fed.R.Crim.P.

Affirmed.