United States v. James Clayborne, United States of America v. William E. Brown, Jr.

509 F.2d 473, 166 U.S. App. D.C. 140, 1974 U.S. App. LEXIS 5639

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 16, 1974
• Docket: 72-2152, 72-2192
• Status: Published

Opinions

MacKINNON, Circuit Judge:

James Clayborne and William E. Brown, Jr. were charged with (1) first degree felony murder,¹ (2) first degree premeditated murder,² (3) attempted robbery while armed³ and (4) attempted robbery.⁴ 5In addition, Clayborne was charged with carrying a pistol without a license.⁵ After a jury trial both appellants were convicted of second degree murder⁶ as a lesser included offense of first degree premeditated murder.⁷ Clayborne was also found guilty of carrying a pistol without a license.⁸ Clayborne was sentenced to concurrent terms of imprisonment of 15 to 45 years for the murder and one year for carrying the pistol. Following a Youth Corrections Act⁹ report on Brown, he was sentenced under section 5010(c) of that Act¹⁰ to a period of commitment not to exceed 10 years. The appeals of both men have been consolidated for all purposes. We affirm.

I

As we must, we set forth the facts most favorable to the jury’s verdict. Connie. Jackson, a 15-year-old girl at the time, was at her home when James Clayborne and William Brown arrived there a little after 1 P.M. on May 12, 1971 (Tr. 234). Clayborne was carrying two plastic bags, one containing a number of watches and the other containing two guns. He showed Connie the bags and attempted to sell some of the watches to her and to her friend Freddy Hooks (Tr. 171-172). He also showed Freddy two pistols from the other bag and attempted to sell them to him (Tr. 172 — 173). While appellants were at the Jackson home an insurance man (Leonard Spiro) came to see Connie’s mother, Mrs. Jackson (Tr. 175, 176— 178). When he found that Mrs. Jackson was not there the insurance man left. Clayborne and Brown then talked between themselves (Tr. 177) and “left right behind” the insurance man — “a few minutes” (Tr. 177) after his departure. Connie then went and looked out the window in the direction Clayborne and Brown had gone (Tr. 178). Connie testified that before they left Clayborne had “two bags in his hand” (Tr. 177). When Clayborne and Brown went outside the house “the insurance man [was] out there” (Tr. 177) and Connie stated that she saw Clayborne and the insurance man fighting (Tr. 178, 180). At that time Brown, not Clayborne, was carrying the two bags and he (Brown) was “down the street ... 25 feet” (Tr. 178, 179) from the point where Clay-borne and the insurance man were fighting. Clayborne had approached the insurance man and later chased him with a gun in his hand (Tr. 180-181). Thus, while Brown was standing by holding the bags, Clayborne chased the insurance man, shot him once in the eye and then ran away (Tr. 181 — 183). After the shooting Brown ran down the parking lot to his home (Tr. 184 — 185). The insurance man died as a result of the shot fired by Clayborne.

The foregoing facts present adequate evidence of Clayborne’s guilt and raise a question for the jury as to whether Brown, in his conversation with Clay-borne before the shooting, by his actions in taking the two bags of valuables, holding them while Clayborne accosted the insurance man and standing by during the fighting and shooting, and by his flight following the shooting, indicated his participation in the crime and aided and abetted Clayborne. in the commission of the offense. The entire evidence was such that it was permissible for the jury to conclude that Brown had aided and abetted the offense, that the two men were acting in concert and conniving¹¹ concerning the offense immediately prior to their pursuit of the victim. This conclusion is supported by testimony that Brown and Clayborne had been seen standing together restlessly throughout the morning of the day in question (Tr. 232 — 234), and that Brown took the two bags, which Clayborne had previously carried, as soon as they left the Jackson house and held the bags while the assault on the insurance man by Clayborne was in progress. During this time Brown was also standing nearby, sufficiently close that he could have helped Clayborne in the fight had his assistance been necessary. Brown’s presence was also consistent with a conclusion that he was acting as a lookout, and his holding of the bags could be interpreted as aiding and abetting¹² Clayborne in the shooting since Clayborne would have found it difficult, if not impossible, to chase, fight and shoot the insurance man if he had been required at the same time to carry two bags containing watches and guns.

Appellants request that we reverse these convictions principally on the claim of inadequate assistance of defense counsel because of the refusal of counsel for both appellants, on tactical and other grounds,¹³ to cross-examine Connie, the Government’s principal witness.

II

Since appellants’ major arguments in support of the claim that they were denied the effective assistance of counsel are so well set forth in Judge Bazelon’s dissenting opinion, drafted prior to this opinion, the following discussion will be addressed principally to the main points referred to in the dissent.

The dissent points first to the claimed defects in Connie’s testimony, to her youth,¹⁴ to some of the vacillation in her testimony, to some contradictions, to her unwillingness to testify and to her fear of reprisals for her testimony. This characterization of her attitude and performance is accurate, but these factors were apparent to the jury, they went to the issue of her credibility, and the jury was the proper tribunal to weigh and consider them.

Next the dissent points out that defense counsel had not interviewed Connie, that Connie originally refused to testify on grounds of alleged self-incrimination (Tr. 128), that a lawyer outside the case was appointed to counsel her on this point and that he informed the court that her refusal to testify was due to fear of reprisal. This intimidation came, not from the lawyers, but apparently from the defendants (Tr. 200) and members of the community in which all parties lived (Tr. 202). The trial judge observed intimidation of Connie in open court by appellants, especially Brown, and he pointed it out to defense counsel. Since it was apparent to the judge he also considered that it was apparent to the jury. When Connie persisted in her refusal to testify she was cautioned by the judge of the likelihood of being charged with perjury and was then adjudged to be in civil contempt and ordered to jail. That order was subsequently remanded and she was placed in protective custody for the night with her mother at a place remote from their usual habitation. However, she was again warned that she would be jailed the next day if she persisted in her refusal to testify.

The next day she agreed to testify. As the dissent points out, following an interview of the witness, defense counsel raised questions as to whether she felt compelled to testify in conformance with her original statement to the police or with her grand jury testimony, which varied in one or two particulars. The argument on this point see-sawed back and forth between respective counsel until the court finally and properly resolved the situation by advising Connie in open court: “The testimony you give in answer to the questions being put to you is to be the truth and only the truth. [G]ive the truth as best you can recollect it” (Tr. 168). She then went on to testify, but because they considered it to be in the best interests of their clients, all defense counsel refused to cross-examine her for the reasons subsequently set forth in a statement filed with the court after the trial. See Appendix A. We find these reasons adequate to support their decisions. In fact, reasons numbered 4 and 5 would each alone have been adequate to support such decisions. These explanations point to the fact that had Connie testified further, there was a strong likelihood she would have testified to additional facts that would have supplied factual elements from which the jury might have found both appellants guilty of first degree felony murder or premeditated murder as well as armed robbery and robbery.¹⁵

Ill

The dissent argues that practically all the reasons given by counsel for not cross-examining Connie were attributable to a failure to interview the witness or do adequate research. This is pure speculation. Moreover, it is incorrect to imply that the defense did not have adequate knowledge of the facts. Connie was a reluctant witness and no law compelled her to submit to an interview. But she was the girl friend of Clayborne’s brother and he wrote to “her repeatedly with regard to her testimony which he knew of about the case” (Tr. 150). Moreover, Connie personally visited Clayborne in jail (Tr. 150, 381, 438A). Clayborne testified that Connie “[came] to visit [him] . . . over at the jail about nine or ten [times and that he] did . . . discuss the case with Connie Jackson over at the jail” (Tr. 381). He knew she was going to be a witness (Tr. 384). Under such circumstances to contend that Clayborne’s counsel were uninformed of Connie’s attitude and of what she knew of the murder and that they made their decision not to cross-examine in a vacuum of facts is incredible. In such circumstances no court should be so naive as to presume that defendants’ trial counsel were ignorant of Connie’s knowledge. Defendants’ counsel on appeal and the dissent fail to recognize that trial counsel had their own clients as sources of information; with the numerous contacts between Clayborne, his brother and Connie under the circumstances here existing it was not necessary for them to interview Connie personally to learn what she would testify to if she told the truth. We will not close our eyes to what any reasonable person would conclude under such circumstances. From the testimony read into the record, see page 478 infra, Brown's counsel knew of the possible contradiction in Connie’s testimony, and he may have believed that an interview would do nothing but confirm that his client had the bags, flag that fact as important in Connie’s mind, and prevent any possible contradiction from arising in her testimony before the jury. Indeed, for whatever cause, Connie did state to the jury at one time (Tr. 193) that she did not remember whether Brown had been holding any bags — a lapse of memory that Brown’s counsel attempted to capitalize upon in his summation (Tr. 487) — but Connie’s final statement was that Brown had “two bags” in his hand (Tr. 195, see also Tr. 177 — 178). In choosing whether to cross-examine Connie, defense counsel were aware that her testimony that Clayborne had only a gun in his hand (Tr. 181) when he was chasing the insurance man, though he had the two bags in his hands immediately prior thereto, also implicitly corroborated her testimony that previously he had given the two bags to Brown, his companion throughout the day.

Connie’s May 18, 1971, statement to the police and her grand jury testimony were also available to the defense (Tr. 120) and in fact were completely read into the record, out of the presence of the jury (Tr. 112-119, 120-126), before all the defense counsel decided not to cross-examine her. Brown, moreover, had made a statement to the police “that implicate[d] himself and Clayborne” (Tr. 26, 28) and Clayborne also told another person that he “had committed the offense” (Tr. 26) and that “William Brown was along with him” (Tr. 28). Defense counsel were aware of this possible testimony.

While it is not directly relevant to the specific objections raised to counsel’s performance, we note also that Brown’s counsel appeared well prepared and effective in respect to other facets of the trial, for example, in suggesting specific modifications to the charges (e. g., Tr. 408 — 14, 431, 437 — 41). Discussing the nature of aiding and abetting (the defense adopted from the beginning) (e. g. Tr. 91 — 92, 326-33, 485-90), and obtaining the dismissal of four out of the five charges against Brown. And in final argument counsel for both defendants informed the jury of tactical reasons for not cross-examining Connie in a manner designed to benefit their clients’ cases (Tr. 483, 486). Each defendant here was defended by highly skilled and experienced trial counsel, and we are convinced that their decisions were permissible tactical decisions.¹⁶ Moreover, their tactics were highly successful in that they secured acquittals on two first degree murder charges for each defendant and also acquittals on both robbery charges.

It thus appears that defense counsel did a creditable job in the face of the strong adverse proof that confronted their clients. In evaluating the quality of their representation, it must be recognized that it is rather difficult to get an acquittal for clients whose crime is viewed in broad daylight by a disinterested, credible eyewitness who knows the defendants personally. In any event obtaining a complete acquittal should not be the measure of a defense lawyer’s competency and effectiveness. It is the task of counsel merely to attempt by all honorable means to see that justice is done. The lawyers here obtained acquittals for their clients on first degree murder and robbery charges and did not breach their duties to their clients by their decisions not to cross-examine a witness who, if she testified truthfully, could only further damage their clients.¹⁷ To say that such conduct by defense lawyers constitutes inadequate assistance of counsel is not only wrong, it is grossly unfair to competent counsel.

It is a difficult task for a court to attempt to tell experienced defense counsel how to defend their clients — particularly with respect to cross-examination and trial tactics. Some lawyers and judges feel that acquittals in criminal cases can be won by vigorous cross-examination of all prosecution witnesses. But cross-examination is a sharp two-edged sword and more criminal cases are won by not cross-examining adverse witnesses, or by a very selective and limited cross-examination of such witnesses, than are ever won by demolishing a witness on cross-examination. Knowing when not to cross-examine an adverse witness is the art of cross-examination at its highest.¹⁸ This is so because cross-examination very frequently operates to emphasize the critical points in a witness’ testimony, and although it may initially be helpful to the defense in some instances, points on cross-examination can usually be answered and discrepancies explained in favor of the prosecution by re-direct examination. The decision whether to cross-examine a witness is peculiarly one for defense counsel and his judgment should be entitled to great respect by the court.

The methodology implicit in allowing reversal of convictions for error of defense counsel has many troublesome elements. A defense lawyer, as a legitimate tactic, takes certain action that he considers to be in the best interest of his client. Declining to cross-examine or to fully cross-examine an adverse witness is a common example. Then, on appeal, at the urging of a newly appointed appellate counsel, whose appointment only for purposes of the appeal insulates him from responsibility for the decisions of trial counsel, a panel of the appellate court would second guess the trial lawyers, speculate about what evidence might have been produced and conclude that the conviction of the accused should be reversed, not for judicial error nor for error of the prosecution, but for the claimed error of the accused’s trial lawyer, i. e., the court would speculate that evidence might have been presented more favorably to the accused, and then surmise that the evidence would have gone so far as to influence the jury to acquit. Because of the inherent hazards to the administration of justice of ordering reversals on such grounds, reversal should never be based upon the good faith tactics of defense lawyers except upon the clearest proof of actual prejudice.

IV

As to appellants’ claim that Connie could have been “severely impeached” on cross-examination by evidence that she was compelled to testify “only after she was threatened by a contempt citation,” the statement by the trial judge fully informed the jury as to such particulars:

THE COURT: ... I wish to make this statement for the record at this time. Miss Connie Jackson testified in this Court, because she was compelled to.

She was subpoenaed here. She did not want to. It was obvious. Yesterday by this Court she was held in contempt. She could have served time in jail for that contempt.

She purged herself of the contempt today by her testimony, testimony that she had to give.

Tr. 207.

As to the possibility that Connie was influenced by a $5,000 reward, Clayborne testified to this effect (Tr. 381 — 382) and his testimony was uncontradieted. From the perspective of the defense this was a better way to highlight the point than to cross-examine Connie on the point, hazard a denial that it influenced her, and then face the possibility of her mother denying the claim. One trouble with trying to impeach Connie was that Clay-borne’s defense was an alibi, based on his own testimony. Brown did not testify. Also, Clayborne’s alibi was rebutted by Luvenia Brown (Tr. 232 — 239), and Mr. McNeal testified that he saw two boys fitting the description of Clayborne and Brown running from the scene of the murder right after he “heard a shot” (Tr. 223) at about the time the murder was committed. Chester Brown, a permanent resident in the housing area where the crime was committed who knew both Clayborne and Brown, testified that later in the day on May 12th he asked Clayborne “Did you do it [kill the insurance man]?” and “He said yes” (Tr. 213 — 221). On cross-examination he testified he didn’t think Clayborne was serious because he laughed, but thereafter he had doubts (Tr. 221). Connie’s testimony was also corroborated by other testimony as to the exact place of the crime and the fact that the men ran.

Clearly all this evidence presented a jury question.

Appellants and the dissent argue that the inadequacies of defense counsel blotted out¹⁹ the sole defense of Clayborne and Brown, but a more accurate appraisal indicates that the tactics of counsel blotted out evidence of robbery and premeditation and that counsel were successful in securing a conviction for their clients on the lesser included charge of second degree murder instead of the first degree felony murder, premeditated murder and robbery charges. In reaching this conclusion, we do not find support in the record for the charge that counsel in any way violated any of the “duties owed by counsel to a client” as set forth in United States v. DeCoster, 159 U.S.App.D.C. 326, 332, 487 F.2d 1197, 1203 (1973).

V

Both appellants claim the evidence was insufficient to support the verdict against them. We disagree. Judge Bazelon’s opinion in note 2 addresses this point and distinguishes Brown’s factual situation from that present in our decision in Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110 (1969). The continuous association of Brown with Clayborne beginning early in the morning, their arrival at the Jackson home together, their furtive consultation immediately preceding the murder by Clayborne, Brown’s holding both bags of valuables that Clayborne had carried moments earlier and standing close by while Clayborne fought with and shot the insurance man, together constituted sufficient facts to support the court’s decision to leave the issue to the jury. Though the evidence was close — closer as to Brown than as to Clayborne — it was sufficient to influence a jury to convict by the required standards.²⁰ Close cases are for the triers.²¹ The aiding and abetting statute of the District of Columbia,²² insofar as this case is concerned, is not substantially different from the federal statute on the same subject.²³ Both require proof that the accused knowingly associated himself in some manner with the criminal venture, that he participated in it as in something he wished to bring about and that he sought by his actions to make it succeed.²⁴ There was no direct proof that Brown shared Clayborne’s ultimately proved criminal intent to murder the insurance man, but proof of such intent is not required.

It is well settled . . . that he need not necessarily have intended the particular crime committed by the principal; an accessory is liable for any criminal act which in the ordinary course of things was the natural or probable consequence of the crime that he advised or commanded, although such consequence may not have been intended by him.

22 C.J.S. Criminal Law § 92 (1961); see United States v. De La Motte, 434 F.2d 289, 293 (2d Cir. 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971). The murder here was a natural and probable consequence of Brown’s actions which permitted Clayborne to fight with the decedent with his hands free and to shoot him with a loaded weapon. The jury was thus justified in finding that the requirements for conviction had been met.

As for Clayborne, the evidence was clearly sufficient to support an instruction on first degree murder ²⁵ and in any event because of the acquittal on first degree any claim of reversible prejudice is weak.²⁶

We also hold that the court properly denied a missing witness instruction with respect to the absence of Freddy Hooks as he was not within' the “peculiar” control of the Government,²⁷ and also properly refused to allow the defense to comment on his absence.²⁸ The minor variation from the locally suggested instructions on aiding and abetting was insignificant and the refusal of the Government to supply a list of witnesses, as is required in capital cases (if it is still required) was harmless error since the only significant witness was known to the defense.²⁹

We thus affirm the judgments of con-, viction of both appellants.

Judgment accordingly.

APPENDIX A

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Criminal No. 2014 — 71

[Filed Nov. 1, 1972, James F. Davey, Clerk]

UNITED STATES OF AMERICA v. JAMES CLAYBORNE

STATEMENT CONCERNING COUNSELS’ DECISION NOT TO CROSS-EXAMINE

The defendant James Clayborne was charged with First Degree Murder-Premeditated and First Degree Murder-Felony Murder. The only eye witness produced by the Government was a 15 year old girl, Connie Jackson. On May 18, 1972 six days after the murder Connie Jackson gave a three page statement to the police indicating that she was a witness to the crime and alleging that the perpetrator of the crime was the defendant, Clayborne. The Government indicated that she was an uncooperative witness and she had been locked up by the Court for her refusal to testify. Before her testimony counsel for the defendant Clayborne took the position that she should not be permitted to testify because her statements would be inherently unreliable. Counsel for the defendant further took the position that counsel should be permitted to speak to the witness concerning her prospective testimony in order to prepare for cross-examination. The Court denied both requests.

In her direct testimony Miss Jackson confined her answers to but a few words. Twice she broke down, crying while on the stand. Counsel for the Government was not permitted by defense counsel to lead the witness. As a result the direct testimony of Miss Jackson was a great deal more sketchy than her statement of May 18, 1972.

The defense of Mr. Clayborne was that he was in the area but did not commit the crime. Further, he would allege when he took the stand that the statement made by Miss Jackson on May 18, 1972 was not true and that she had been pressured by her mother into giving that statement so that she could receive the substantial reward which had been offered.

Counsel for the defendant Clayborne decided not to cross-examine Miss Jackson for the following reasons:

1. To preserve counsels’ position that the witness should not have been permitted to testify.

2. To preserve counsels’ position that counsel should have been permitted to speak to Miss Jackson before she testified concerning her testimony.

3. The young witness had broken down twice and she presented a very sympathetic witness to the jury and a very difficult witness for any counsel to cross-examine.

4. Miss Jackson’s direct testimony did not give a factual basis to support a charge of robbery or attempted robbery necessary for a felony-murder conviction. 'Had Miss Jackson been permitted by way of cross-examination or by a leading re-direct question to explain fully what allegedly occurred between the deceased and the defendant, James Clayborne, evidence of an attempted robbery most certainly would have come out.

5. Had Miss Jackson been permitted to explain in detail the manner in which the deceased had been allegedly shot by Mr. Clayborne there could well have been sufficient evidence to support the element of premeditation as a part of First Degree Murder.

6. Mr. Clayborne’s defense could be presented without the cross-examination of Miss Jackson. Further, Mr. Clay-borne’s defense might well put the Government in a position requiring it to recall Miss Jackson in rebuttal to discredit Mr. Clayborne’s testimony that she was lying in order to get reward money. If that occurred counsel would then be in a position to freely cross-examine Miss Jackson without the fear of á First Degree conviction.

As it turned out, the Court granted a motion for judgment of acquittal on the Felony Murder count (the count most feared by defense counsel) but did not grant the same motion on the premeditated count. Also, as it turned out, the Government decided not to recall Miss Jackson which put the defense in a position of being able to argue to the jury the fact that Mr. Clayborne’s allegations concerning Miss Jackson remained unrebutted. •

The jury convicted Mr. Clayborne of Second Degree Murder which meant of course that it believed Miss Jackson and disbelieved Mr. Clayborne. All four defense counsel felt that the tactic not to cross-examine Miss Jackson prevented a First Degree conviction.

Respectfully submitted,

/s/ Charles Jarvis Murray CHARLES JARVIS MURRAY Associate Counsel

1 . D.C.Code § 22-2401 (1973).

2 . Id

3 . Id §§ 22-2902, 22-3202.

4 . Id § 22-2902.

5 . Id § 22-3204.

6 . Id. § 22-2403.

7 . As to Clayborne the court granted acquittals on all charges except first degree premeditated murder and carrying a pistol without a license. As to Brown the court granted acquittals on all charges except second degree murder as a lesser included offense of first degree premeditated murder (Tr. 368).

8 . Note 5, supra.

9 . 18 U.S.C. § 5010(e).

10 . Id. § 5010(c).

11 . D.C.Code § 22-105(1973) provides:

§ 22-105. Persons advising, inciting, or conniving at criminal offense to be charged as principals.

In prosecutions for any criminal offense all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals and not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanor only shall apply to all crimes, whatever the punishment may be. (Mar. 3, 1901, 31 Stat. 1337, ch. 854, § 908.)

12 . Id.

13 . The grounds are fully set forth in the statement of counsel. See Appendix A infra.

14 . She was 15 at the time of the offense and 16 at the time of the trial.

15 . Part of Connie’s statement to the police, of which defense counsel were aware, was more incriminating:

When James [Clayborne] started whispering I knew he was going to do something so I went upstairs to the third floor bedroom and looked out the window and saw the insurance man and James fighting over by the steps and Little William [Brown] was standing a little ways away watching.

Tr. 113.

16 . See Appendix A.

17 . Counsel pointed out that the witness might have testified on cross-examination or re-direct examination in more specific detail as to attempted robbery and premeditation. This was a very definite hazard, obvious to anyone, and counsel could only be considered to be acting in their clients’ best interests by not subjecting them to these risks.

18 . A good example of the delicate nuances of cross-examination was given in a recent feature story in the Washington Post which reported a conversation between a Watergate prosecutor and his opponent, a noted defense lawyer:

“I was at the trial,” says John Seigenthaler, “when Jim Neal walked up to John Wilson (Haldeman’s lawyer) and said, ‘Why are you goin’ so soft on John Dean? I thought you’d go after him hammer and tongs.’

“And Wilson, he says, ‘The hell you did. You would have done just what I did. And the way I did it.’

“And Neal — he just laughed. And then he said, ‘You’re right. You’re absolutely right. I would’ve done it just the way you did.’ ”

Washington Post, Nov. 10, 1974, § L at 3: “Watergate Prosecutor Neal: Shrewd Tennessee Lawyer.”

19 . Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968).

20 . Crawford v. United States, 126 U.S.App. D.C. 156, 375 F.2d 332 (1967).

21 . Thompson v. United States, 132 U.S.App. D.C. 38, 39, 405 F.2d 1106, 1107 (1968).

22 . D.C.Code § 22-105 (1973), set forth in note 11 supra.

23 . 18 U.S.C. § 2 (1970).

24 . Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949); United States v. Lumpkin, 145 U.S.App.D.C. 162, 167, 448 F.2d 1085, 1090 (1971); United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938).

25 . See United States v. Brooks, 146 U.S.App. D.C. 1, 8, 449 F.2d 1077, 1084 (1971). From the testimony here the jury could deduce that before the murder Clayborne took the murder weapon from the bag containing two guns, gave the bags to Brown and then, with the gun in his possession, accosted, chased and shot the decedent.

26 . See United States v. Dent, 155 U.S.App. D.C. 278, 477 F.2d 447 (1973).

27 . See Burgess v. United States, 142 U.S.App. D.C. 198, 203, 204, 440 F.2d 226, 231, 232 (1970).

28 . Id.; United States v. Young, 150 U.S.App. D.C. 98, 463 F.2d 934 (1972).

29 . Status hearing, Tr. 10. Connie Jackson told Clayborne that she was going to testify (Tr. 384); she visited him 10 times in jail (Tr. 381, 483A), discussed the case with him (Tr. 381) and Clayborne’s brother, who was Connie.’s boy friend, and wrote her a number of letters concerning the case (Tr. 150). Brown’s attorney (Kramer) was also aware of who the witness was (Tr. 147).