United States v. Hill, 72-3815 Summary Calendar.

Citation481 F.2d 929
Decision Date23 July 1973
Docket NumberNo. 72-3815 Summary Calendar.,72-3815 Summary Calendar.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Calvin HILL, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Fred L. Cavalli, court-appointed, Atlanta, Ga., for defendant-appellant.

John W. Stokes, Jr., U. S. Atty., William P. Gaffney, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

AINSWORTH, Circuit Judge:

Defendant Calvin Hill was found guilty by a jury of distributing heroin in violation of 21 U.S.C. § 841(a)(1) (1970) and sentenced by the district court to four years' imprisonment, to be followed by three years' parole. The district court also recommended to the Attorney General that defendant serve his sentence at an institution where he could receive treatment for his drug addiction. Appellant Hill raises several points on appeal, including the sufficiency of evidence to warrant conviction, and the general admission of a witness' prior statement. We affirm.

Stephen T. Garrison, an undercover investigator with the DeKalb County Police Department of Atlanta, Georgia, testified that he and an informant, Stephen Anthony Settles, went to Cassandra Bufford's apartment on Fulton Street in Atlanta in the afternoon of September 26, 1972 to complete the purchase of one-half ounce of heroin for $700. "Sandra" said the arrangements were complete, and introduced Isaiah Grant. Grant made a phone call and then got into an automobile driven by an unidentified individual. With Garrison and Settles following in another automobile, Grant went to a gasoline station on Auburn Avenue where he picked up Hill. Then they drove farther and finally pulled down a side road and stopped. Hill got out of the car and disappeared around a corner.

Grant walked back to Garrison's car and asked for $700. Garrison insisted on a sample first, so Grant went around the same corner as Hill and returned with a piece of aluminum foil containing a white powder. After examining it, Garrison said he was satisfied but said he wanted the rest of the heroin at the same time as the money was exchanged. Garrison then testified that "it was agreed that the party from which the heroin was coming from would be in the bushes slightly to the right and in front of both of the vehicles; that the informant would go up to the bushes and we would receive from the person in the bushes, who I later recognized to be Calvin Hill, the heroin." Grant and Garrison were to remain at the automobiles, and Garrison was to give Grant $700 when Settles signalled that he had the heroin.

Grant walked around the corner where Hill had gone and where Grant had earlier gotten the sample of heroin. Shortly after he returned, a man appeared at the bushes with an article of clothing over his face. Garrison identified the article of clothing as a "lady's sock or something to that effect," while Settles thought it was a "dark shirt." Both Garrison and Settles positively identified the man as Hill despite the mask. Settles walked up to the bushes and reached for the heroin, but at that time Hill and Grant drew their pistols. Grant took the $700 from Garrison and then began shooting at Garrison. As Grant and Hill fled, Garrison fired several shots. No one was injured.

The next morning Bufford, Grant, and Hill were arrested. The arresting officer testified that Hill had in his possession money which matched xerox copies of the bills Garrison passed to Grant.

To rebut this evidence, the defense began with testimony by Grant. He acknowledged having pled guilty to an indictment charging Bufford, Grant, and Hill with distributing heroin, and then he elaborated on his scheme:

I told Garrison that I could take care of him. And I didn\'t actually intend to sell him any dope. What it was, a planned ripoff. Everytime — I ripoff everybody that comes into the neighborhood to buy drugs.
Q Tell us what do you mean by ripoff.
A This is to take the money away from him, by trickery or by force, whichever, or whatever it takes.
Q All right.
A And I was looking for a couple of my friends or a couple of people, you know, always involved with me, and to take care of the business, see.
In the process of me looking for my friend, I ran down on Auburn Avenue for a couple of seconds. Mr. Hill asked me for a ride, Calvin Hill asked me for a ride to a friend of his house by the name of Johnny to pick up his car. I give him that ride.
Q Where did you take him?
A Took him to Gordon Street, I believe it was.
Q All right. Then what happened?
A Well, that was the last I saw of him that day, and to make a long story short, I had a shootout with Mr. Garrison.

Also, he said that the money found in Hill's possession was money Grant gave to Hill's girl friend for payment to Hill on a debt. During cross-examination by the Government, Grant admitted signing a statement at the time of his arrest which named Hill as the person he called. In his statement Grant also said Hill provided the sample of heroin. This statement was introduced into evidence.

The only other defense witness was Hill himself who described his unfortunate childhood, which included crimes of car theft at the age of 14, forgery at the age of 18, and shoplifting at the age of 19. Now at the age of 23, he had not held a steady job for a year, but he said he managed to support his narcotics habit through financial help from his mother and brother. He denied ever selling drugs. On the afternoon of August 26, he said he hitched a ride with Grant only for the purpose of visiting a friend.

I.

Hill was indicted for aiding and abetting Grant's delivery of the one gram sample of heroin to Garrison. There were no eyewitnesses in the Government's case in chief to verify that Grant received the sample from Hill. Thus, this is essentially a case of circumstantial evidence which must meet the standards summarized recently in United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353, 1355.

In circumstantial evidence cases, the test of the sufficiency of proof on a motion for judgment of acquittal, and on review of the denial of such a motion, is whether, taking the evidence most favorable to the Government, Glasser v. United States, 1942, 315 U. S. 60, 62 S.Ct. 457, 86 L.Ed. 680, the jury might reasonably conclude that the evidence is inconsistent with the hypothesis of the accused\'s innocence. United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 825; United States v. Andrews, 5 Cir. 1970, 427 F.2d 539, 540; Surrett v. United States, 5 Cir. 1970, 421 F.2d 403, 405. If the evidence is such that a reasonable person may have a reasonable doubt as to the defendant\'s guilt, the case should be submitted to the jury. On the other hand, a trial judge should not permit a case to go to
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