494 F.2d 955 (D.C. Cir. 1974), 71-1503, United States v. Leonard

Docket Nº:71-1503, 71-2019.
Citation:494 F.2d 955
Party Name:UNITED STATES of America v. Irie E. LEONARD, Appellant. UNITED STATES of America v. James L. SARVIS, Appellant.
Case Date:January 31, 1974
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 955

494 F.2d 955 (D.C. Cir. 1974)

UNITED STATES of America

v.

Irie E. LEONARD, Appellant.

UNITED STATES of America

v.

James L. SARVIS, Appellant.

Nos. 71-1503, 71-2019.

United States Court of Appeals, District of Columbia Circuit.

January 31, 1974

         Argued Dec. 14, 1972.

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         Geoffrey Cowan, Washington, D.C. (appointed by this Court) for appellant in No. 71-2019.

         Julius A. Johnson, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty., John A. Terry and John F. Evans, Asst. U.S. Attys., were on the brief, for appellee. James F. Rutherford, Asst. U.S. Atty., also entered an appearance for appellee.

         Raphael Sherfy and Gary G. Quintiere, Washington, D.C. (both appointed by this Court) with whom Thomas W. Farquhar, Washington, D.C., was on the brief, for appellant in No. 71-1503.

         Before BAZELON, Chief Judge, TAMM, Circuit Judge, and WINTER, [*] Circuit Judge for the Fourth Circuit.

         WINTER, Circuit Judge:

         Defendants, James L. Sarvis and Irie E. Leonard, were tried jointly with Francis A. Salters on a five-count indictment charging them with felony murder, 1 first degree murder, 2 armed robbery, 3 robbery, 4 and second degree burglary. 5 The jury found Sarvis guilty of armed robbery and second degree burglary. It convicted Leonard of first degree murder, armed robbery, and second degree burglary. Salters was acquitted.

         Sarvis and Leonard both appeal. They advance a number of contentions as to why their convictions should be reversed. We conclude that there were three errors of sufficient magnitude to warrant reversal and a new trial. They were: (1) the failure of the district

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         court to instruct the jury, as requested by defendants, to scrutinize carefully the testimony of two important government witnesses to whom immunity had been granted; (2) the district court's limitation of the cross-examination of one of the important government witnesses with reference to two unrelated felony charges pending against him; and (3) the district court's failure to give an immediate cautioning instruction when the testimony of an arresting officer was admitted to impeach Leonard's testimony in his own defense. Although we do not find them to be grounds for reversal, we are constrained to discuss some of the other issues raised by defendants' remaining contentions because of the likelihood that they will arise again on retrial.

         I.

         FACTS.

         While we will state additional facts in the discussion of the contentions to which they are especially pertinent, we begin with a general outline of the case. Benjamin Rudd was brutually robbed and murdered in his basement apartment at 854 21st St., N.E., Washington, D.C. during the evening of September 15-16, 1970. Rudd arrived home in a taxicab about 11:00 p.m. When he left the cab, a group of young men standing across the street called to him. Rudd joined the group for a minute and then crossed the street to his apartment, accompanied by two of them. Six witnesses identified one of the men accompanying Rudd as the defendant Leonard. Three witnesses identified the other as the defendant Sarvis. Rudd apparently felt threatened and sought refuge in the apartment of his neighbor, Virginia Gaskins. Eventually, Rudd was coaxed out into the apartment hallway.

         At this point, the two men identified as Sarvis and Leonard assaulted Rudd; Leonard knocked him down, took his keys and wallet, and dragged him into the apartment. Then, about six members of the group began to plunder Rudd's apartment. Among these were Albert Jones and Curtis Hughes, both of whom testified for the government under a grant of immunity, and Francis Salters, the third defendant. Other members of the group, including Larry Mauldin and Robert King, watched from outside the apartment building but did not enter. Both Mauldin and King testified for the government, as did Donald Montgomery, another member of the group who had departed earlier.

         While these men rifled Rudd's apartment, Rudd was beaten, tortured, and eventually killed. Although none of the witnesses observed the lethal blow, their testimony pointed to the culpability of Leonard or Sarvis, or both. Jones testified that Leonard told him 'he (Leonard) was going to kill Ben . . .. There was nothing else to do . . . because he had seen . . . his (Leonard's) face and Jimmie's (Sarvis') face.' Hughes testified that he observed Sarvis and Leonard torturing the deceased. Hughes further testified that Leonard told him he was going to kill Rudd, and that he observed Leonard take a butcher knife from the kitchen to the bedroom where Sarvis was harassing the victim with a sculpture knife. Hughes also testified that as Salters left the apartment, Salters said that 'they were going to kill him.'

         Sarvis and Leonard based their defense on separate alibis. Leonard testified; Sarvis did not. Salters in effect admitted his presence, but contended that he did not participate in the crimes. He did not testify.

         II.

         ACCOMPLICE AND IMMUNITY INSTRUCTIONS

         In addition to the highly incriminating testimony of Jones and Hughes, both of whom were obviously accomplices, a substantial portion of the government's evidence came from witnesses who were involved, either as onlookers or participants, with the group of young men whose members allegedly killed the victim

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         and ransacked his apartment. 6 During the police investigation, Jones and Hughes first denied knowledge of the crime, but later admitted their complicity and agreed to cooperate. The government granted both immunity pursuant to 18 U.S.C. § 6002 (Supp.1973). 7 Thus, Jones and Hughes testified both as accomplices and under a grant of immunity.

         Neither Sarvis nor Leonard specifically requested the district court to instruct the jury that the testimony of Jones and Hughes should be received with caution because they were accomplices; rather, they requested instructions admonishing the jury to receive this evidence with caution because Jones and Hughes had been granted immunity. 8 The district court denied the requested immunity instruction. While it offered to instruct that the testimony of Jones and Hughes, who testified under a grant of immunity, 'is to be scrutinized and evaluated in the same manner as the testimony of all other witnesses who testified during the case, ' in fact, the district court gave only the standard instruction as to witnesses' testimony and failed to mention the immune status of Jones and Hughes. Sarvis and Leonard claim error in the failure to give either an accomplice or an immunity instruction.

         A. There can be no doubt but that an accomplice instruction would have been proper, because, in Crawford v. United States, 212 U.S. 183, 203-204, 29 S.Ct. 260, 268, 53 L.Ed. 465 (1909), the Supreme Court held that the testimony

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         of a witness who turned 'state's evidence'

         is not to be taken as that of an ordinary witness of good character in a case, whose testimony is generally and prima facie supposed to be correct. On the contrary, the evidence of such a witness ought to be received with suspicion, and with the greatest care and caution, and ought not to be passed upon by the jury under the same rules governing other and apparently credible witnesses.

         The Court has characterized accomplice testimony as 'inevitably suspect' and unreliable. Bruton v. United States, 391 U.S. 123, 136, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). See On Lee v. United States, 343 U.S. 747, 757, 72 S.Ct. 967, 96 L.Ed. 1270 (1952).

          We have no doubt that it is better practice for a district court sua sponte to caution the jury concerning an accomplice's testimony, and that it is reversible error to refuse to give a requested accomplice instruction. Freed v. United States, 49 U.S.App.D.C. 392, 266 F. 1012 (1920). However, neither defendant requested an accomplice instruction; nor did either object to its omission. Rule 30, F.R.Cr.P., bars the claim on appeal unless the district court's failure to give an accomplice instruction was 'plain error' in the circumstances of this case. Rule 52(b), F.R.Cr.P.

         That the failure to give an accomplice instruction may, in certain exceptional circumstances, constitute plain error has been recognized among the circuits. Tillery v. United States, 411 F.2d 644 (5 Cir. 1969); McMillen v. United States, 386 F.2d 29, 35-36 (1 Cir. 1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968). 9 But such recognition has not been extended to a case like the instant one where nonaccomplice testimony corroborated the accomplice testimony and was sufficient in itself to serve as a basis for conviction. Thus in Tillery, where the court found plain error, virtually all of the government's case rested upon the accomplice's testimony, the accomplice changed his testimony several times prior to trial to the extent that the court characterized it as 'extremely unreliable, if not incredible and insubstantial' (Id., 411 F.2d at 648), and the case was factually close. 10 Similarly, in McMillen, plain error was noticed where the district court instructed as to the now discredited presumption of truthfulness, 'the only evidence connecting . . . (defendant) with the . . . (crime) came from the mouths of others involved in that escapade, ' and 'these were not accomplices who had paid their price to society and were free from carrot or stick.' 386 F.2d at 36. See also United States v. Evans, 398 F.2d 159, 163-164 (3 Cir. 1968).

         By contrast, in the instant case, nonaccomplice testimony corroborated the accomplice testimony to a significant extent against Leonard, and to a lesser extent against Sarvis. As to Leonard, four other witnesses substantially...

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