United States v. George A. Martin

475 F.2d 943, 154 U.S. App. D.C. 359, 1973 U.S. App. LEXIS 12008

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 26, 1973
• Docket: 71-1457
• Status: Published

Opinions

TAMM, Circuit Judge:

Appellant George A. Martin was tried before a jury and convicted of assault on George R. Thompson with intent to kill while armed and assault with a dangerous weapon on Robert B. Clark. He was sentenced to concurrent terms of ten years to life on the former count and one to three years on the latter. Appellant alleges numerous errors, none of which were raised at trial. After careful consideration of the record and arguments advanced by the parties, we find no substantial error which would merit reversal and evidence which overwhelmingly supports the verdict. Accordingly, we affirm.

I

The sequence of events immediately surrounding the assault must be gleaned primarily from the testimony of the three parties involved, Messrs. Thompson, Clark and Martin, there being no other eyewitnesses to the crime. The testimony of Thompson and Clark was consistent and corroborating. On the evening of April 11, 1970, shortly before 11:00 p. m., Robert B. Clark, dressed in a tuxedo and accompanied by a female companion, parked his car at the corner of 18th and P Streets, N.W., from whence he proceeded on foot less than one block to a nightclub near Dupont Circle. When he parked the car, his suspicion had been aroused by a man “leaning on the traffic light and looking at [he] and [his] date and looking at [his] car . . . [who] acted a little strangely.” Apprehensive because he had left his overcoat in the car, Mr. Clark decided that it would be wise to return and move the vehicle to another location. He escorted his companion to the doorway of the nightclub where he encountered an acquaintance, George Thompson, who also planned to attend the nightclub dance. He asked Thompson to accompany him back to the car. The two men embarked, and as they approached the intersection of 18th and P Streets, Thompson noticed that there was a man, the appellant herein, apparently trying to force open the window of Clark’s car. As Thompson and Clark approached, the man crossed over to the other side of the automobile where he was apparently trying to force the other window open. Thompson and Clark both yelled for him to “get away from that car.” At this point appellant was standing near the rear of Mr. Clark’s car on the street side; Mr. Thompson had crossed in front of Clark’s car to the street side and was about six feet from appellant; and Clark was still on the sidewalk proceeding towards the rear of his car.

Thompson testified that Clark next yelled to appellant to the effect that it was Clark’s car. Thereupon appellant, who was standing with his hands at his side in a relaxed position, lunged at Thompson and struck him on the side of the neck. By this time Clark had proceeded to the street behind the appellant, and appellant turned on him. Clark hit appellant, causing him to strike his head on the rear of the car and fall to the pavement. As he fell, a knife scooted from his hand and Thompson retrieved it. It was then that Thompson discovered that his own neck had been slit, a wound of about six inches which exposed the jugular vein and required thirty-two stitches to close.

Clark testified that upon observing a scuffle breaking out between appellant and Thompson he ran around the rear of the car to the street side. He observed Thompson going to his knees and appellant with one arm raised as if to strike another blow. He allegedly tapped appellant on the shoulder shouting “What are you doing,” at which point appellant turned and swung at Clark’s face with a knife or other sharp object. Clark ducked and then struck appellant several times causing him to fall and hit his head on the’ rear of the car thereby breaking the taillight.

The Government introduced Metropolitan Police Officer Landon H. Lewis, who had arrived at the scene shortly after the incident and found appellant in a semi-conscious state, with Mr. Clark assisting in administering first aid. According to his testimony, shortly after the incident in question appellant was taken to George Washington hospital for treatment. After questioning several individuals on the scene and seeing that Mr. Thompson was properly ministered to, Officer Lewis also proceeded to George Washington Hospital. By 1:00 a. m. appellant had been treated and had regained full consciousness and Officer Lewis testified that he was coherent and appeared to be cognizant of his surroundings. Appellant was then informed of the injury to Mr. Thompson, placed under arrest and advised of his rights. At that point, according to Officer Lewis, appellant said “Why am I here and why am I in this condition? I am good with a knife. The guy should be dead.” Upon being released from the hospital and transported to the police station appellant also said “I should have killed the guy.”

According to appellant, who testified in his own behalf, he had been at the home of his girlfriend where he had taken a “few drinks” while awaiting her return. He left the apartment and walked to the corner to await the bus, where he “might have been leaning on Mr. Clark’s car.” Mr. Clark, according to appellant, then came up behind him and asked him something. Appellant did not see him. Clark then allegedly hit him on the head “with a pipe or something,” rendering appellant unconscious. Later appellant claimed that the “few drinks” amounted to a quart of Vodka, all contrary to the testimony of his purported girlfriend who stated that there was never any liquor in her apartment and that when she arrived home shortly after appellant left there were absolutely no signs of drinking.¹ During cross-examination appellant substantially revised his testimony. While still maintaining that he did not see Mr. Clark or the object with which he was purportedly struck, he stated that Clark had hit him on the front of the head with the object. The following colloquy then occurred:

Q. [Prosecuting Attorney] The first thing that happens is Mr. Clark comes and hits you with an object and you wake up in the hospital, is that correct?

A. [Martin] That’s correct.

Q. And you never struck Mr. Clark or Mr. Thompson, is that correct? A. That is correct.

Q. Then, how do you explain how Mr. Thompson as he was falling back happened to cut his throat? .

A. I believe — I didn’t fall down the first time he hit me with this object. He hit me I’d say two maybe three times. As he was hitting me with this object the other fellow, Mr. Thompson, had grabbed me trying to pull me down and as I was falling he fell down with me.

Appellant further testified that as he fell, Thompson must have cut his throat on the taillight of the car, which presumably was already broken. This was not only contrary to the testimony of Clark and Thompson, but was also refuted by Dr. Harris Slavick, the physician who treated Thompson. Dr. Slavick testified that, in his opinion, a wound as clean and sharp as the one in question must have been caused by a knife, razor or other similar instrument, and could not have been caused by a broken taillight. Appellant also introduced the testimony of Mr. and Mrs. Hampton, friends with whom he had briefly conversed just prior to the incident. On direct examination they testified that appellant was drunk, although on cross-examination they both conceded that appellant manifested none of the physical signs commonly associated with intoxication.² Moreover, Thompson and Clark had both testified, concordant with the testimony of Officer Lewis, that from their observations appellant did not appear to be intoxicated.

II

As a threshold matter appellant failed to preserve any of the issues which he now raises by timely objection at trial. This is contrary to Fed.R.Crim.P. 51, which provides that a party should make “known to the court the action which he desires the court to take or his objection to the action of the court and the grounds therefor . ” The significance of this requirement lies not only in the important “need for a record, developed by adversary processes, on which appellate consideration and resolution can safely proceed,” ³ but also in considerations of fairness to the parties and the public in bringing litigation to an end after a full and fair opportunity has been afforded to present all issues of fact and law.⁴ Moreover, the rule serves the simple purpose of apprising the trial judge of errors so that he may correct them immediately and thereby maximize the likelihood of a just outcome. Rucker v. United States, 92 U.S.App.D.C. 336, 206 F.2d 464 (1953). The circumstances are particularly unfavorable to appellant since he alleges error in the jury instructions. Rule 30 specifically provides that no party may assign any portion of the charge as error unless he objects before the jury retires and distinctly states the matter to which he objects and the grounds for his objection. The matter would end here were it not for Rule 52(b)⁵ which permits the reviewing court to take notice of “[p]lain errors or defects affecting substantial rights.”⁶ Having carefully considered the record as a whole, we are now of the opinion that appellant has demonstrated only one error that merits comment. We proceed to a discussion of whether that error affected substantial rights.

Ill

Appellant was convicted of one count of assault with intent to kill while armed, a crime requiring specific intent. See, e. g., United States v. Bryant, 137 U.S.App.D.C. 124, 420 F.2d 1327 (1969). It is beyond dispute that the burden of proof rests with the Government and that, once the defense of intoxication is interjected, the burden rests with the Government to establish that at the time the offense was committed the defendant had the capacity to form the requisite specific intent. See, e. g., Womack v. United States, 119 U. S.App.D.C. 40, 336 F.2d 959 (1964); Heideman v. United States, 104 U.S.App.D.C. 128, 259 F.2d 943 (1958), cert. denied, 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed.2d 767 (1959); and Edwards v. United States, 84 U.S.App.D.C. 310, 172 F.2d 884 (1949). According to appellant, the trial court committed prejudicial error by shifting the burden of proof to the defendant when the following instructions were issued:

Now, as you know, ladies and gentlemen of the jury, mere drinking is not intoxication. You must find beyond a reasonable doubt that the defendant at the time and place in question if he did perform the act was in such a mental state that he was not capable of forming the specific intent in question. (Emphasis added.)

Standing alone, this instruction is plainly erroneous. However, the numerous occasions on which we have examined alleged errors in jury instructions have resulted in the emergence of several propositions to assist us in our evaluation. Paramount among them is the principle that jury instructions are to be considered as a whole, rather than as isolated passages.⁷ A not entirely dissimilar case is Suggs v. United States, 132 U.S.App.D.C. 337, 407 F.2d 1272 (1969). In a conviction for robbery, the trial judge had correctly instructed the jury that one of the essential elements of robbery was that the defendant took the property unlawfully and with the intent to convert it permanently to his own use. The judge went on to instruct that the specific intent necessary for robbery could not be formulated if defendant was too intoxicated to form it. Immediately thereafter, however, the jury was incorrectly informed that they might infer that defendant was guilty if he knowingly had in his possession without adequate explanation property recently taken from complainant. Noting that counsel had failed to object to these instructions, this court held that those instructions, considered as a whole, did not constitute error within the meaning of Fed.R. Crim.P. 52(b). In so doing, the court cautioned against isolating a portion of the whole charge to the jury:

It is not difficult of course to isolate an individual sentence in a series of jury instructions thereby highlighting its special meaning and obscuring the collective impact of the jury instructions taken as a whole. Such an approach, however, tends to focus on the trees and misses the forest. Nor can we accept the notion that jurors give instructions the supercritical scrutiny which an appellate court can provide. We are satisfied that considered as a whole, rather than dealing with parts taken out of context, the charge abundantly covered the essential elements.

407 F.2d at 1276-1277. Similarly, in Howard v. United States, 128 U.S.App.D.C. 336, 389 F.2d 287 (1967), where the judge had improperly charged the jury in a murder trial that malice could be inferred from the use of deadly weapons, the court refused to reverse. Not only did the defendant fail to object to the charge, but also the proof of malice was strong and the court was “aided, too, by the trial court’s final words on malice, which helped to correct the error . . . . Even if a portion of a trial court’s instructions is incorrect, an appellate court need not reverse if the error is ‘cured by a subsequent charge or by a consideration of the entire charge . ’ ” ⁸ Howard illustrates a second point to be considered in our evaluation — strong evidence supports a finding of no prejudice. Accord, Cooper v. United States, 123 U.S.App.D.C. 83, 357 F.2d 274 (1966); Scurry v. United States, 120 U.S.App.D.C. 374, 347 F.2d 468 (1965), cert. denied, 389 U.S. 883, 88 S.Ct. 139, 19 L.Ed.2d 179 (1967); and Nixon v. United States, 114 U.S.App.D.C. 21, 309 F.2d 316 (1962), cert. denied, 385 U.S. 963, 87 S.Ct. 405, 17 L.Ed.2d 307 (1966).

While these propositions are necessary ingredients of our analysis, they do not elucidate the ultimate question which relates to the standard we must apply in determining whether error affecting substantial rights has occurred. The Government urges that the relevant standard was articulated by this court in United States v. Thurman, 138 U.S.App.D.C. 349, 417 F.2d 752, 753 (1969), cert. denied 397 U.S. 1026, 90 S.Ct. 1269, 25 L.Ed.2d 535 (1970):

In evaluating an asserted error in a portion of a jury instruction we must, of course, examine the charge as a whole to determine whether there was a likelihood of misleading the jury to the extent that it is more probable than not that an improper verdict was rendered. (Emphasis added.)

In Thurman, however, the court based its holding on the fact that defense counsel not only failed to object to the charge, but also specifically requested and urged the judge to give the instruction objected to on appeal. Moreover, Thurman involved an allegedly ambiguous instruction on the issue of self-defense, whereas we are concerned here with one of the fundamental components of due process — the burden of proof beyond a reaonable doubt.⁹ We have recently had occasion to enunciate the appropriate standard in United States v. Hayward, 136 U.S.App.D.C. 300, 420 F.2d 142 (1969), a case involving an appeal from a conviction for first degree murder. The defendant’s primary defense had been alibi, and the trial judge had correctly instructed the jury that if the Government failed to satisfy the jury beyond a reasonable doubt that the defendant was present at the time and place where the offense was allegedly committed, they must find him not guilty. The jury was then instructed, however, that if the Government had proven beyond a reasonable doubt that defendant was at the scene of the crime, they must convict him. By instructing the jury that they must convict under these circumstances the trial judge undermined an essential element of the jury function. Since a jury trial is a constitutional right guaranteed by the sixth amendment, the applicable standard for determining whether the error was harmless was that established by the Supreme Court in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967):

[B]e£ore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.

See also Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The Court has recently illuminated the standard in Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972), a case involving the admission into evidence of multiple confessions by defendant, the last of which was tainted, where it concluded:

Our review of the record, however, leaves us with no reasonable doubt that the jury at petitioner’s . . . trial would have reached the same verdict without hearing [the testimony of a police officer who posed as petitioner’s cellmate in order to obtain a confession]. [T]he use of the additional evidence challenged in this proceeding and arguably open to challenge was, beyond reasonable doubt, harmless.

407 U.S. at 377-378, 92 S.Ct. at 2178. Chapman and its progeny therefore exhort an examination of the evidence by the reviewing court with a view toward determining whether the error meant the difference between acquittal and conviction. Thus, in considering the alleged error in the present case, we must determine, beyond a reasonable doubt, whether the same result would have been reached had the judge omitted the erroneous sentence in his instructions or had he correctly explained the burden in that sentence.

IV

In the present case, while instructing the jury on the general burden of proof prior to issuing the erroneous sentence, the trial judge had on numerous occasions directed the jury’s attention to the fact that the entire burden was on the Government.¹⁰ Moreover, the paragraph in question was followed immediately by two correct paragraphs on the issue of intoxication:

On the other hand, if you find that the Government has failed to prove beyond a reasonable doubt that at the time of the commission of the alleged offense the defendant was capable of determining or of forming the specific intent to commit the offense with which he is charged or the offenses, and that the specific intent to do so— then you must if you find that the Government has failed to prove that the defendant in this case was capable of forming the specific intent then you may find the defendant not guilty.

If you find that the Government has in this particular case, that if there is doubt in your mind, then the doubt may be determined in favor of the defendant so far as the intent.

We have already indicated the nature of the evidence presented on the issue of intoxication. Three Government witnesses testified that appellant did not appear to be intoxicated. When appellant took the stand, his testimony on the issue was inconsistent and contradictory. One of the three witnesses presented by appellant admitted in open court that appellant had offered to bribe her; while the other two, friends of the appellant, testified that he displayed none of the physical manifestations of intoxication. Finally, the very nature of the acts in question, whereby appellant was able to lunge nearly six feet and deliver a nearly fatal wound to one adversary and then turn and attempt to overcome a second, supports the conclusion that he was in full possession of his faculties.¹¹

In view of the instructions considered as a whole and the substantial evidence presented at trial, we are convinced beyond a reasonable doubt that appellant was not prejudiced. Accordingly we affirm.

1 . Miss Dickerson, appellant’s reputed girlfriend, further testified that appellant had asked her to perjure herself in court— indeed, had offered to bribe her — by claiming that she was an eyewitness and lying about the incident.

2 . Specifically, one or both testified that they could understand appellant when he spoke, that he did not stagger, bang the sides of the wall or in any other way act offensive or obnoxious, and that he appeared to understand all that was said to him.

3 . United States v. Lewis, 140 U.S.App.D.C. 40, 433 F.2d 1146, 1152 (1970).

4 . United States v. Atkinson, 297 U.S. 157, 159, 56 S.Ct. 391, 80 L.Ed. 555 (1936) and Johnston v. Reily, 82 U.S.App.D.C. 6, 160 F.2d 249 (1947). While we realize that such arguments have more force in the context of civil proceedings than in criminal proceedings, a criminal defendant is protected by the further safeguard of Fed.R.Crim.P. 52(b) which is considered below.

5 . However, as the court stated in United States v. Ostendorff, 371 F.2d 729, 731 (4th Cir. 1967), cert. denied, 386 U.S. 982, 87 S.Ct. 1286, 18 L.Ed.2d 229 (1967), “it was never intended that Rule 52(b) be applied in such a way as to destroy Rule 30 . . .

6 . The converse of Rule 52(b) under the facts of this case is Rule 52(a), which provides:

Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.

These rules will therefore be used interchangeably throughout much of the opinion.

7 . See, e. g., United States v. Gaither, 142 U.S.App.D.C. 234, 440 F.2d 262 (1971); United States v. Johnson, 140 U.S.App.D.C. 54, 433 F.2d 1160 (1970); Carter v. United States, 138 U.S.App.D.C. 349, 427 F.2d 619 (1970); United States v. Porter, 139 U.S.App.D.C. 19, 429 F.2d 203 (1970); United States v. Thurman, 135 U.S.App.D.C. 184, 417 F.2d 752 (1969), cert. denied, 397 U.S. 1026, 90 S.Ct. 1269, 25 L.Ed.2d 535 (1970); Suggs v. United States, 132 U.S.App.D.C. 337, 407 F.2d 1272 (1969); United States v. Hayward, 136 U.S.App.D.C. 300, 420 F.2d 142 (1969); Bynum v. United States, 133 U.S.App.D.C. 4, 408 F.2d 1207 (1968), cert. denied, 394 U.S. 935, 89 S.Ct. 1211, 22 L.Ed.2d 466 (1969); Jones v. United States, 131 U.S.App.D.C. 212, 404 F.2d 212 (1968); Howard v. United States, 128 U.S.App.D.C. 336, 389 F.2d 287 (1967); Scurry v. United States, 120 U.S.App.D.C. 374, 347 F.2d 468 (1965), cert. denied, 389 U.S. 883, 88 S.Ct. 139, 19 L.Ed.2d 179 (1967); Nixon v. United States, 114 U.S.App.D.C. 21, 309 F.2d 316 (1962), cert. denied, 385 U.S. 963, 87 S.Ct. 405, 17 L.Ed.2d 307 (1966); McFarland v. United States, 85 U.S.App.D.C. 19, 174 F.2d 538 (1949); and McAffee v. United States, 70 App.D.C. 143, 105 F.2d 21 (1939).

8 . 389 F.2d at 291, citing for authority Southern Pac. Co. v. Souza, 179 F.2d 691, 694 (9th Cir. 1950) and Redfield v. United States, 117 U.S.App.D.C. 231, 328 F.2d 532 (1964), cert. denied, 377 U.S. 972, 84 S.Ct. 1654, 12 L.Ed.2d 741 (1964).

9 . See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.24 368 (1970); Davis v. United States, 160 U.S. 469, 488, 16 S.Ct. 353, 40 L.Ed. 499 (1895); and United States v. Powell, 145 U.S.App.D.C. 332, 449 F.2d 994, 997-98 (1971). As the Court stated in In re Winship, 397 U.S. at 364, 90 S.Ct. 1068, 1072:

[T]he reasonable-doubt standard is indispensible, for it “impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.”

Moreover, use of the reasonable-doubt standard is indispensible to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. (Citations omitted.)

10 . Consider the following passages from the instructions:

The defendant is not required to establish his innocence under our system of jurisprudence. The law never imposes upon a defendant in a criminal case the burden or the duty of calling any witness or producing any evidence whatsoever in his defense ....

And this presumption of innocence attends him throughout the progress of the trial and it remains with him until it is overcome by evidence proving his guilt to your satisfaction beyond a reasonable doubt.

Now, in order to find the defendant guilty of the offense the Government must prove beyond a reasonable doubt the following essential elements of the offense.

Second, that he did so with specific intent to kill the complainant.

11 . Chief Judge Bazelon wrote a carefully reasoned dissenting opinion in Suggs v. United States, supra, which serves as an excellent device to illustrate that the facts in the present case are even more convincing in terms of affirmance than those in Suggs. First, Judge Bazelon stressed that the incorrect instruction was the last of a series of sentences, and that it was imbedded by the trial judge’s terminology in the jury’s minds:

The incorrect statement concerning unexplained possession was the last thing the jury heard in connection with the robbery charge, and they were told that it represented a “further principle” to the rule that intoxication is a defense.

407 F.2d at 1278. Neither is true in this case — indeed, the exact opposite is true since the two correct paragraphs followed the erroneous sentence. Judge Bazelon also argued persuasively that should the jury have accepted the inference incorrectly related to them, they may well have concluded that it was unnecessary to even resolve the issue of specific intent and may, in fact, have disregarded it altogether. In the present case, on the other hand, the jury had to reach the issue of intent and the defense of intoxication. At issue is the burden of proof with which they resolved it. Finally, Judge Bazelon urged that an “apparently substantial” defense of intoxication was presented by the appellant in Suggs, drawing particular attention to the fact that the alleged thief made off only with a pair of false teeth. Here, of course, we are considering an assault by one allegedly intoxicated individual on two other individuals in which the former was able to inflict swift and telling damage before succumbing.