United States v. Lumpkin

• Decision Date: 21 June 1971
• Docket Number: No. 24410.,24410.
• Citation: 145 US App. DC 162,448 F.2d 1085
• Parties: UNITED STATES of America v. Wilkin D. LUMPKIN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

145 US App. DC 162, 448 F.2d 1085 (1971)

UNITED STATES of America v. Wilkin D. LUMPKIN, Appellant.

No. 24410.

United States Court of Appeals, District of Columbia Circuit.

Argued April 14, 1971.

Decided June 21, 1971.

Mr. Douglas L. Leslie, with whom Mr. Donald J. Capuano, Washington, D. C. (both appointed by this court) was on the brief, for appellant.

Mr. Robert S. Tignor, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and John F. Evans, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and LEVENTHAL and MacKINNON, Circuit Judges.

MacKINNON, Circuit Judge:

The controlling issue is whether appellant Lumpkin was a participant in a liquor store robbery or an innocent bystander. His motions for judgment of acquittal were denied and he was found guilty by the verdict of a jury of armed robbery and two counts of assault with a dangerous weapon (D.C.Code §§ 22-3202, 2901, 502 (1967)). We consider first the evidence with the permissible inferences existing at the close of the Government's case in chief and the propriety of the denial of the motion for acquittal.

I

On the evening of November 17, 1968, Jack's Liquor Store at 1209-7th Street, N.W.¹ was being operated by its owner, Moss, and by a part-time stock clerk, Montgomery. At about 9 P.M. (closing time), appellant Lumpkin entered with Wilson and Lee. These men will also be hereafter sometimes referred to as the First Robber (Wilson), the Second Robber (Lee) and the Third Robber (Lumpkin).² These three men were the only non-store personnel in the store at the time of the robbery and all three were arrested then and there for the robbery, so it is certain that Lumpkin was present at the scene of the crime. What is not entirely certain however is just what precise part each played since the two store workers, who were the principal witnesses for the Government, were on the floor behind the counter during a part of the robbery and thus had only a restricted opportunity to observe the robbers. There is no doubt that Wilson was the First Robber, that he played a principal part in the robbery, and that Lee and Lumpkin were the Second and Third Robbers, without distinguishing which was the Second and which was the Third Robber. There is likewise no doubt that the evidence is sufficient to support a conviction of the Second Robber. If we were satisfied that Lumpkin were the Second Robber we would have no doubt as to his guilt and would affirm the conviction out of hand. But since we are not so convinced our inquiry narrows to determine whether the evidence is sufficient to support a judgment of conviction of Lumpkin for the acts described as having been committed by the Third Robber.

At closing time for the liquor store the three robbers entered the store "together" and then conversed until two or three other customers left the store. The First Robber (Wilson) then ordered some rum and when Moss turned his back to get it from the shelf, Wilson got behind the counter, put his arm around Moss' neck and a hard object in his back (a gun later appeared) and said "Where's the money? This is a stick-up." At the same time Wilson said, "To the floor." Moss responded to this order by lying down on the floor. Neither Lumpkin nor Lee, however, responded to this order. While Moss was lying on the floor back of the counter Wilson held a gun over him. The Second Robber³ went to where Montgomery was near the back of the store and ordered Montgomery to lie down on the floor (which he did) and at that moment the Third Robber was observed by Montgomery to be standing almost at the front end of the counter about two feet from the front window. "Two or three minutes" later one of the robbers ordered Montgomery to get up and open the cash register. Montgomery responded by getting up to do so and as he did, he later testified, "I didn't know how to open the cash register. This person the Third Robber that was standing over here near the window came on down, along in here indicating on the board." (Emphasis added.) The exact location to which the Third Robber moved was marked as "D-2" by Montgomery on a chart-exhibit which depicted the entire layout of the store.

Montgomery's testimony in this respect indicated that the Third Robber, at this critical juncture of the robbery when attention was focusing on the cash register, moved sideways along the counter about 6' from a point about 2' from the front window of the store to a point within about 3' from the cash register (reaching distance). This is the more reasonable reading of the transcript (Tr. 75-76). But even if, as defense counsel contends, Montgomery did not see the Third Robber move, but only observed when he got up from the floor that the Third Robber had moved, the movement was not that of a passive bystander but of someone aiding in the robbery.⁴

As he stated, however, Montgomery could not open the cash register. Immediately after this became apparent, Wilson ordered Moss to stand up and open the cash register, and after Moss rose and was about to open the cash register a uniformed armed guard of the Wells Fargo Protective Agency (Zuppello), responding "within a few minutes" to a 9:02 P.M. burglary alarm, came in the front door with a gun in his hand and said, "What goes on here?" Moss replied, "A holdup."

About the time Zuppello entered the store, positive testimony indicated that Lumpkin was observed to be standing by a refrigerator, back from the counter, about 3' or 4' from the door, facing the cash register.⁵ This is a distance of about 6' from the last prior location of the Third Robber at the counter near the cash register. Immediately upon his entry, Zuppello lined up Lumpkin, Wilson and Lee inside the store with their hands up on the side wall over the top of a low 6' long box refrigerator. Zuppello wanted Montgomery to line up also but Moss identified him as his employee. While Lumpkin, Lee and Wilson were standing as aforesaid, Police Officer Grace entered the store and searched them. There was no evidence that Lumpkin (or Lee) objected to the search on any ground or made any claim at that time that he was an innocent by-stander.

From the testimony it was reasonable to conclude with respect to the three defendants: First, that they "entered together," next that "they were hanging around" the store, "talking together," waiting for the other customers to leave so they would outnumber the men in the store, and that then "they ordered a type of liquor." Secondly, (1) that Wilson, the First Robber, assaulted Moss, put the gun on him, ordered him and the others to lie on the floor, took money from his pockets and subsequently ordered Montgomery and Moss to open the cash register; (2) that the Second Robber (Lee or Lumpkin) heard the First Robber's (Wilson's) declaration of a stickup and his order to lie down and observed Wilson's acts assaulting and holding up Moss, refused to lie down on the floor and heard the orders to Montgomery, but not to the Second or Third Robbers, to lie on the floor, heard the orders to Montgomery and Moss to open the cash register, and was at the position marked "Lumpkin-Lee" on the chart when the guard and policeman came and searched him and did not contend he was not a participant in the robbery; (3) that the Third Robber (Lumpkin or Lee) heard the First Robber's (Wilson's) declaration of a stick-up and his order to lie down and observed his acts assaulting and holding up Moss, did not lie down on the floor, took a position at the front of the store (where he could serve as a lookout) (D-1),⁶ and heard the order to Montgomery to open the cash register. Then he moved down the counter to a position near the cash register (D-2),⁷ stayed there while Moss was ordered by Wilson to open the cash register and eventually moved back to a position near the door (marked Lumpkin-Lee on the chart) next to the refrigerator box.⁸

The circumstances thus distinguished this case from Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110 (1969) where Bailey's presence during the commission of the crime was more removed and entirely passive.⁹ Here the acts of the Third Robber were sufficient to support a finding by the court (and later by the jury) that his presence was pursuant to a prior understanding and that he intended thereby to assist in the commission of the offense. It was a reasonable inference from the Third Robber's actions in the first stage of the robbery, when he stayed near the front of the store where he could see out the door and window, that he was acting as a lookout. His failure to lie down on the floor raises a question, although defense counsel puts it to us that this was quite consistent with the conduct of a passive bystander who merely froze into position. What clearly sends the case to the jury is the Third Robber's actions in the second stage of the robbery, when the first two robbers were focusing on the cash register and were attempting to get first Montgomery and then Moss to open it, and when the Third Robber moved along the counter from a place near the front of the store to a position close by the cash register. This conduct, assuming belief in Montgomery's testimony, is not consistent with the action of a mere passive bystander. It is an entirely reasonable inference that he was moving there expecting to receive the proceeds of the cash register when it was opened and in any event to assist the robbers to accomplish their purpose. In addition, the Third Robber's presence in the small store placed him in more meaningful proximity to the crime than did Bailey's presence. This Third Robber could not have failed to realize that an armed robbery was in progress; all his movements during this period were consistent with aiding and abetting the robbery, which was not true in Bailey; and it was reasonable to infer that at least one movement was inconsistent with his being a mere passive bystander....