471 F.2d 923 (D.C. Cir. 1973), 23190, United States v. Alexander

Docket Nº:23190, 23783.
Citation:471 F.2d 923
Party Name:UNITED STATES of America v. Gordon ALEXANDER, Appellant. UNITED STATES of America v. Benjamin MURDOCK, Appellant.
Case Date:April 21, 1972
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 923

471 F.2d 923 (D.C. Cir. 1973)



Gordon ALEXANDER, Appellant. UNITED STATES of America


Benjamin MURDOCK, Appellant.

Nos. 23190, 23783.

United States Court of Appeals, District of Columbia Circuit.

April 21, 1972. [*]

Argued Dec. 21, 1970.

Certiorari Denied Dec. 4, 1972. See 93 S.Ct. 541.

As Amended Jan. 25, 1973.

Page 924

[Copyrighted Material Omitted]

Page 925

Mr. Dorsey Evans, Washington, D. C., with whom Mr. George O. Ackerman, Washington, D. C., was on the brief for appellant in No. 23190.

Mr. Fred R. Joseph, Hyattsville, Md., with whom Messrs. Karl G. Feissner, William L. Kaplan, Thomas P. Smith, and Andrew E. Greenwald, Hyattsville, Md., were on the brief, for appellant in No. 23783.

Mr. Richard J. Hopkins, Washington, D. C. (appointed by this Court), also filed a brief for appellant in No. 23783.

Mr. Gregory C. Brady, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, McGOWAN, Circuit Judge, and RUSSELL E. SMITH, [*] Chief Judge, U. S. District Court for the District of Montana.

Page 926


The convictions appealed from are affirmed (Judges McGowan and Smith for the court, Chief Judge Bazelon dissenting), except that in No. 23, 190 appellant Alexander's convictions on three of the four counts of assault are vacated, as is also the sentence on the fourth, and the case is remanded for resentencing on such remaining assault count (Judges Bazelon and Smith for the court, Judge McGowan dissenting).

It is so ordered.

BAZELON, Chief Judge:

The extreme length of this opinion reflects the number and perplexity of the issues presented for review. While brevity may normally be a touchstone of good writing style as well as sound judicial practice, it is occasionally essential to write at length on issues of far-reaching importance. The grounds of error raised on this appeal cut across our entire system of criminal justice. Appellants raise a very substantial challenge to the trial court's rulings on the admissibility of evidence, instructions to the jury, sentencing, expert testimony, and the nature of criminal responsibility.

At issue here are much more than technical rules of law devoid of any significance outside a courtroom or law school lecture hall. A racial epithet hurled at appellants by one of their victims touched off an explosion of violence and bloodshed, an explosion that reverberates the traumas of our entire society. We cannot rationally decry crime and brutality and racial animosity without at the same time struggling to enhance the fairness and integrity of the criminal justice system. That system has first-line responsibility for probing and coping with these complex problems.

The tragic events which gave rise to this appeal might possibly have been avoided by various means. Proponents of legislation for the effective control of firearms will find powerful ammunition here. But such measures can never reach the root causes of crime so long as we remain in ignorance of the mental agonies that produce bizarre and violent behavior. Criminal trials-and, above all, the responsibility defense-compel us to explore these problems, and thereby offer some slight hope that we will learn, in the course of deciding individual cases, something about the causes of crime. Not only the defendant but the criminal justice system as a whole has a vital interest in insuring that trials are conducted without significant error and in a manner that guarantees the ventilation of all the pertinent issues and information. 1 We cannot afford to obscure the difficult questions for the sake of speed and efficiency in obtaining convictions, since efficiency of that order yields a specious economy. Appellate courts must scrutinize carefully the record of trial, and expose-where necessary with opinions as lengthy as this one-the difficulties that plague our efforts to improve the quality of the criminal justice system.

On the evening of June 4, 1968, five men and a woman-all white-walked into a hamburger shop, stood by the take-out counter, and ordered some food. The men were United States Marine Lieutenants in formal dress white uniforms; the woman was a friend of one of them. They noticed three Negro men sitting at the other end of the counter; these were appellants Alexander and Murdock and one Cornelius Frazier.

What ensued in the restaurant had the tragic result that both Alexander and Murdock drew guns on the group, and that shots were fired that left two of the Marines dead and another and the woman seriously wounded. At a joint trial by jury in February, 1969, Alexander

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and Murdock were each found guilty of carrying a dangerous weapon, and of four counts of assault with a dangerous weapon. Murdock, in addition, was found guilty of two counts of second-degree murder. A separate hearing for Murdock on the issue of insanity was held in November, 1969, at the close of which the jury returned a verdict of guilty on all counts. Appellants received consecutive sentences as to several counts, totalling five to twenty-three years for Alexander, and twenty years to life for Murdock. 2

Since the case presents numerous and complicated issues and since the reasoning which underlies the Court's decision is expressed in part in this opinion and in part in the separate opinion by Judge McGowan, this opinion begins with a table of contents describing the Court's disposition of each issue and indicating the pages at which the discussion of each issue is set forth.


A. Detailed summary of the evidence concerning the incident in the restaurant 928

B. Alexander: The imposition of separate convictions and consecutive sentences was improper where a defendant, by a single act, put in fear different members of a group toward whom his action was collectively directed.

BAZELON, C. J., for the Court 930

McGOWAN, J., dissenting 966

C. Alexander: It is unnecessary for the Court to decide whether the trial judge erred in instructing the jury that they could convict Alexander of murder, manslaughter, or assault with a dangerous weapon on the theory that he aided and abetted Murdock.

McGOWAN, J., for the Court 966

BAZELON, C. J., dissenting 934

D. Alexander: If erroneous, the submission to the jury of the murder and manslaughter counts was harmless.

McGOWAN, J., for the Court 966

BAZELON, C. J., dissenting 936

E. Murdock: The evidence was sufficient to support a finding of malice; the instruction on manslaughter was unnecessarily confusing, and a revised instruction is proposed.

BAZELON, C. J., for the Court 941


A. Murdock: The trial judge correctly denied the proposed instruction on diminished responsibility.

Page 928

McGOWAN, J., for the Court 967-968

BAZELON, C. J., dissenting 948

B. Murdock: The trial judge did not err in refusing to grant a new trial despite the exclusion of conclusory testimony by a government psychologist testifying in favor of the insanity defense.

McGOWAN, J., for the Court 967-968

BAZELON, C. J., dissenting 952

C. Murdock: The trial judge did not err in instructing the jury with respect to the testimony relating to the defendant's "rotten social background."

McGOWAN, J., for the Court 968

BAZELON, C. J., dissenting 957


A. The Evidence Presented at Trial

Five United States Marine Lieutenants-Ellsworth Kramer, Thaddeus Lesnick, William King, Frank Marasco, and Daniel LeGear-attended a dinner at the Marine Corps Base in Quantico, Virginia, on the evening of June 4, 1968, in celebration of their near-completion of basic officers' training. After dinner, they drove to Washington, arriving about midnight, still wearing their formal dress white uniforms. They stopped for about an hour-and-a-half at a nightclub, where they each had a drink. They were well-behaved and "conducted themselves like gentlemen." At the nightclub they met Barbara Kelly, a good friend of Lieutenant Kramer. They accompanied her to her apartment, which she shared with another young woman, and visited there with the two women until about 2:40 a. m. When the five Marines departed, Miss Kelly accompanied them, intending to return to the nightclub to meet another friend. Along the way, they decided to stop at a hamburger shop to get some coffee and sandwiches before the trip back to Quantico. The six of them entered the shop, stood by the take-out counter, and ordered their food. They noticed three Negro males sitting at the other end of the counter. As described by Lieutenant Kramer, "[T]heir hair was in Afro-bush cut, wearing medallions, jersey knit shirts, sport jackets. . . . [T]hey were what I consider in eccentric dress." The three men were Alexander, Murdock, and Cornelius Frazier. The critical events which subsequently took place in the restaurant were described by the four survivors of the Marine group and by Murdock and Frazier. Alexander chose not to take the stand.

According to the prosecution witnesses, Lieutenant Kramer realized that appellant Alexander was staring at him, and he returned the stare. "[I]t was on the order of a Mexican stand-off type thing where you just keep staring at one another for an indefinite period of time." No words were exchanged between the two men, and Lieutenant Kramer soon turned and faced the counter. Shortly thereafter Frazier, Murdock, and...

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