Jones v. United States

• Decision Date: 05 October 1961
• Docket Number: No. 15488.,15488.
• Citation: 111 US App. DC 276,296 F.2d 398
• Parties: Willie JONES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

111 US App. DC 276, 296 F.2d 398 (1961)

Willie JONES, Appellant, v. UNITED STATES of America, Appellee.

No. 15488.

United States Court of Appeals District of Columbia Circuit.

Argued May 25, 1960.

Decided October 5, 1961.

Petition for Rehearing Denied January 2, 1962.

Messrs. Albert J. Ahern, Jr., and James J. Laughlin, Washington, D. C., for appellant.

Mr. John D. Lane, Asst. U. S. Atty., at the time the brief was filed, with whom Mr. Oliver Gasch, U. S. Atty., at the time the brief was filed, and Mr. Carl W. Belcher, Asst. U. S. Atty., Washington, D. C., at the time the brief was filed, were on the brief, for appellees.

Before WILBUR K. MILLER, Chief Judge, and EDGERTON, PRETTYMAN, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting en banc.

PRETTYMAN, Circuit Judge.

Appellant was indicted in two counts, tried, convicted and sentenced for first degree murder and assault with intent to kill. The basic facts are simple. He had had for several years a somewhat tempestuous attachment to a "common-law wife", by whom he had had children. At one point he had taken poison in her presence. He had been involved in proceedings before the Commission on Mental Health. There had been an estrangement, and the woman had evinced interest in one Winters. About three weeks prior to the events with which we are here concerned, Jones purchased a pistol. On the day in question his common-law wife was in D. C. General Hospital for surgical treatment for leg burns. Jones went to the hospital during visiting hours. He carried the gun in a shoe box. Winters was seated at the woman's bedside in a ward where there were eight patients. After a brief conversation with the woman, Jones took the gun from the box, shot and killed Winters, and fired three times at the woman, wounding her. He fired five times in all, then laid the gun on the bed, and surrendered to the officer who ran in at the sound of the shooting. To this officer and to other officers who came upon call, Jones declined to answer questions, said he wanted to talk to a lawyer, and asked for a cigarette.

Several points are made on this appeal.

I

The first point is that prejudicial error was committed when the United States Attorney was allowed to cross-examine Jones concerning his failure to speak at the time of the arrest and his desire to consult an attorney; and in permitting the prosecutor to advert to those facts in his summation to the jury. We think this point is not well taken.

Upon the trial the following facts were shown: A police officer was on duty in the corridor on the floor of the hospital where the killing took place. He described crucial events of the evening. The time was about 7:30 p. m. He heard the shots and ran to the ward. Jones was stepping over the body of Winters. The officer placed Jones under arrest, asked for his gun, and was told by Jones he had placed it on the bed. The officer started leading Jones toward his desk down the corridor: "I asked him why did he do the shooting, why did he shoot the man, he says, `Well, I'd rather not make any more statements until I see my attorney.'" No objection was made to this testimony. The officer left Jones at the desk, went back to the ward, recovered the gun, picked up two slugs, and returned to Jones. Jones asked if it was permissible to smoke. Within ten or fifteen minutes of the shooting, two other officers arrived from headquarters. One of these officers identified himself to Jones and asked him what had happened, "and he told me he didn't want to make any statement." The officer went to the ward, where an intern was administering to Winters, and then returned to Jones and asked him again if he wanted to tell "what happened". This time Jones said, "I will tell you what led up to it." He then related his association with Alma Jordon, his difficulties with Winters, the purchase of the gun, his preparation for the visit to the hospital. "And then he said: You know the rest."

About an hour later, i. e., about 9 o'clock, Winters died. Jones had been taken to police headquarters. These same two officers went there from the hospital and about 10 p. m. told Jones Winters had died. "I asked him if he wanted to make a statement; and he said, no, he wanted to speak to a lawyer." No objection was made to this testimony by the police officers.

Alma Jordon testified concerning the circumstances of the shooting and, among other things, said: "He asked me how did I feel. * * * I told him I felt all right except my legs was hurting. * * * He says: Well, I got something to stop that." Thereupon, she testified, he took the pistol out of the shoe box and commenced firing.

Jones took the stand in his own defense. He testified at length on direct (50 pages of the transcript). After relating his affair with the woman and his troubles with Winters, he described in minute detail his call at the hospital on the fatal evening up to the firing of the first shot. He said he got the gun out of the box, the woman grabbed his arm, Winters pushed the bed against him, and "the gun went off." He said: "Everything went black. The last that I can remember, Reggie was touching me." He repeated this account of the shooting, up to the pushing of the bed. "At that time, the gun fired". He said: "That is all I know. That is all I can relate, until the officer — I was sitting out there at the desk where the officer was." The cross-examination was extensive (almost 100 pages of the transcript). In the course of it Jones was asked if he did not tell the two police officers at the hospital "you would prefer not to make a statement". Objection was made this time; it was overruled, and Jones said he did not remember what he said to them then; "I mean the only time I made the statement, I believe, about the lawyer was at number one locked up sometime later that night." He was later asked whether he made this statement at police headquarters (No. One); objection was made and overruled, and Jones said, "I don't know."

In his opening summation to the jury the prosecutor related the facts surrounding the shooting. He described Jones as "Calm, cool, deliberate, self-contained." He then referred to the call of the two officers on Jones at police headquarters and said:

"And what does this cool, calm and deliberate Defendant say at that time?

"No, no, I don\'t want to make a statement. I would prefer to talk with an attorney."

In his closing the prosecutor again related in detail the facts of the shooting, Jones's statement, the incidents at police headquarters. He wove all this into his reply to the argument of defense counsel that there was not a scintilla of evidence which would justify a verdict of first degree murder. He said, inter alia:

"Those are all acts of a thinking, rational, normal person, who knows what he is doing, who is thinking things, who has it planned out.

* * * * * *

"And then he has the audacity, in his cool, calm and deliberate way, of saying: Give me a cigarette. And telling the police: I won\'t tell you where I got the gun. I took it over here tonight. You know the rest.

* * * * * *

"No, I would prefer to talk to a lawyer."

We have related these facts in detail because we are deciding this case — this case upon these facts and under these circumstances. There are many cases in the reports dealing with statements of accused persons refusing to make statements or demanding to see a lawyer. It is quite apparent there are established general rules but no established routine answer; the answers, under the rules, depend upon the surrounding circumstances and the context.

As an initial parenthesis we mention problems which we do not have here. We do not have the problem which was presented in Raffel,¹ Grunewald² and Stewart.³ Nor do we have a case in which a defendant, in the presence of an accusatory statement by another person, refused to make a statement or made an evasive reply.⁴ Nor do we have a case, such as Kelley v. United States,⁵ in which an accused, in the presence of an accusatory statement, says merely that he wants a lawyer. Many cases concern the evidentiary consequences of silence on the part of an accused. Somebody states something; the accused says nothing; does he thereby admit the fact stated? Difficult problems of jurisprudence are presented. But we have no such case here. Nobody stated anything; Jones did not stand silent.

The determinative characteristics of the problem before us are: Jones made his first statement at the time and place of the crime — on the spot a few minutes after the shooting. He had not been subjected to interrogation or inquiry; in each instance he was asked one simple question. That he committed the homicide is unquestioned; he does not dispute it. He voluntarily took the stand at the trial and testified as to events up to and including the first shot. He testified that he "blacked out" after that. The prosecutor used the statements as direct evidence of the state of Jones's mind at the time of the offense — "cool, calm and deliberate" — to combat the argument of defense counsel that there was not a scintilla of evidence of elements of first degree murder and to combat the defense of "blackout".

Jones's statements first came into the record as part of the description of the events which occurred at the time and on the scene of the crime. No objection was made to them. Nor do we see how there could have been objection. What is said and done under such circumstances is admissible under elementary rules. His second statement of his desire to see a lawyer came in response to a single simple question, addressed to him when he was informed his victim had died. This was within two hours of the shooting. He had not been subjected to any sort of interrogation or examination. He had shot a man in the presence of eight witnesses; he was being held; the man died; he was so informed, and he said he wanted a lawyer. We cannot see any ground for objection...