U.S. v. Bolden

• Decision Date: 19 June 1975
• Docket Number: Nos. 73-1384,73-1385,s. 73-1384
• Citation: 514 F.2d 1301,169 U.S.App.D.C. 60
• Parties: UNITED STATES of America v. James F. BOLDEN, Appellant. UNITED STATES of America v. George E. JONES, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1301

514 F.2d 1301

169 U.S.App.D.C. 60

UNITED STATES of America v. James F. BOLDEN, Appellant.

UNITED STATES of America v. George E. JONES, Appellant.

Nos. 73-1384, 73-1385.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 14, 1975.

Decided June 19, 1975.

Philip L. Cohan, Washington, D. C., with whom Myer Feldman, Washington, D. C. (both appointed by this court), was on the brief, for appellants.

Albert H. Turkus, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and Brian W. Shaughnessy, Asst. U. S. Attys., were on the brief, for appellee.

Before WRIGHT and ROBINSON, Circuit Judges, and DAVIS, ^* Judge, United States Court of Claims.

Opinion for the court filed by Judge DAVIS.

DAVIS, Judge:

Appellants were both convicted of felony-murder ¹ and robbery, ² and appellant Bolden of carrying a dangerous weapon without a license, ³ in connection with the death of Richard Owings, a security guard at the A&P grocery store on Benning Road, N.E., in the District of Columbia, on December 14, 1971. Finding the evidence sufficient and no material error in the general conduct of the trial, we affirm the convictions on the robbery and dangerous weapon counts. The trial judge's failure, however, to fully respond to a jury inquiry about the law of felony-murder requires us to vacate that conviction and remand for a new trial on that charge. Defects in the sentencing procedure also call for a remand for resentencing.

I

While the testimony was not all one way, the jury could have accepted the following as proven: At about 2:00 on the afternoon of December 14, 1971, appellants entered the A&P grocery store at 1729 Benning Road, N.E., looked around for a while, bought a cupcake and a package of cigarettes, and left. Their activities evoked the attention of Loretta Pollard, a long-time cashier at the frequently-robbed store, and when they returned to the store shortly after their initial visit, Miss Pollard alerted the security guard, Mr. Owings, to their presence and expressed her opinion that the pair looked "shakey". Almost immediately thereafter, a scuffle between the pair and Mr. Owings ensued, during which appellant Jones was seen holding a silver object in the air, and appellant Bolden was seen holding the guard around his waist, and reaching for the guard's gun. The employees and the customers in the store rushed for cover, most of them running to the rear of the store. Two shots were fired, one of which, entering the guard's body in the center of his back, killed him. While those in the store remained in hiding for several minutes following the shots, there was testimony that various people heard a cash register drawer open. After appellants fled the store, the cash registers, only two of which had been used that day, were found to be a total of $632.06 short, the missing money including a large number of $10 and $20-bills. The guard's gun was also missing.

Appellants were seen running east from the store. While a police alert describing them had been broadcast soon after the shooting ⁴, the appellants were actually apprehended shortly after 2:30 P.M. when Mrs. Blanche Shuler asked police to check out the two strange men who had been seen entering her house at 622 20th Street, N.E., about six blocks from the A&P.

It seems clear that one of appellants' purposes in entering the house at 622 20th Street was to find some transportation out of the area. After being refused a ride by those in the house, Jones made a phone call asking someone to pick him up at about 3:00 when the streets would be crowded. ⁵ Both women who spent time with Jones in the house testified that he had a bloody upper lip and that he complained that he hadn't known "this old man could hit so hard," to which Bolden was heard to reply "Yes, but I didn't plan it that way." Bolden, meanwhile, was seen counting money he had pulled from his pocket into piles of fives, tens, and twenties. On the arrival of the police, who had been alerted by Mrs. Shuler, appellants both ran upstairs into a bedroom. A gun was seen protruding from the door. The police followed, but, believing the men armed, did not go directly into the room. After placing one officer in a position on the porch roof to block any attempted escape through the bedroom window, the police convinced appellants to surrender.

A search of appellant Bolden yielded $73 in fives, ones, and one twenty and several blank .22 caliber bullets. While searching the upstairs room in which appellants had been hiding, the police found a .38 caliber Smith & Wesson revolver hidden in a shoe box filled with trading stamps, and two coats, one between the mattress and boxsprings of the bed and the other in the bottom of the closet. Residents of the house said that they had never seen the gun or the coats before, although Mrs. Shuler did keep her trading stamps in the shoe box. The gun when found had two spent cartridges and four live rounds of ammunition. It was later discovered that the serial number of that weapon matched that on an application to purchase a revolver which Officer Owings had filled out two years earlier. The coats were identified at trial as those seen on or carried by appellants both in the A&P and in the house, although there was confusion as to who had which coat. Swab tests revealed that both Bolden and Owings, but not Jones, had recently fired or touched a freshly fired gun, and blood tests on one of the coats the one the women at 622 20th Street saw on Jones showed a small trace of blood. A blood test on Jones's shoes showed them to be clean of blood.

II

Appellants' initial point is that there was insufficient evidence against them to send the case to the jury. It is unnecessary to repeat that, on review after a jury verdict of guilty, we must give the government the benefit of all reasonable inferences in assessing the sufficiency of the evidence. United States v. Mackin, 164 U.S.App.D.C. ---, 502 F.2d 429, 441, cert. denied, 419 U.S. 1052, 95 S.Ct. 629, 42 L.Ed.2d 647 (1974). Only when the reviewing court is convinced that on the basis of the evidence no reasonable mind could fairly have found the defendants guilty without a reasonable doubt, can we overturn a conviction for lack of sufficient evidence. See Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, 232-33, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed.2d 1850 (1947). That standard is not met here.

There is, first, more than adequate basis to reject the claim that appellants were misidentified and were not shown to have been involved at all in the episode at the A&P store. The most telling item was that the gun found secreted in the room at the 20th Street house in which appellants hid was almost certainly guard Owings' gun the serial numbers were identical and the purchase was traced to him. It is almost impossible to explain the presence of the gun at the 20th Street house without positing the presence of at least one of the appellants at the store.

In addition there was more. While understandably there was conflicting and confused testimony as to who wore which jacket, the two coats found at the 20th Street house were consistently identified as those seen at the A&P. There was undisputed testimony that the two men running from the A&P ran east, and appellants were found shortly thereafter about six blocks southeast of the store. The money missing from the store was of approximately the same denominations as that Bolden was seen counting at the house. The comments at the house, the search for a ride out of the area, and the residue tests on Bolden ⁶ all tend to show that the pair had been involved in some recent trouble involving the firing of a gun. As to Bolden, there was also a positive line-up identification shortly after the incident by Miss Pollard, the A&P cashier. ⁷

Bolden's defense at trial was simply misidentification. On the basis of the evidence summarized above, including the specific identification, it was not wrong for a juror to find beyond a reasonable doubt that Bolden was in fact at the A&P, and that after the shooting he fled with the guard's gun and the store's money. Jones offered the defense that he was at the most an accessory after the fact, ⁸ and argued this thesis to the jury. While the case against Jones is less strong than that against Bolden, we believe the jury could reasonably conclude on the basis of all the evidence, and because of the unlikelihood that Jones would have first teamed up with Bolden as the latter was running away with a pistol from a homicide, that Jones was indeed the "tall one" seen in the supermarket.

Once the appellants are placed at the A&P, there is little problem, on the sufficiency-of-the-evidence point, with the other elements of the counts charging robbery and carrying a dangerous weapon. The robbery count charged that the pistol was taken from guard Owings, and there was of course enough evidence that Bolden took the pistol, used it, and carried it away, and that Jones was directly involved with him at the time. By the same token the charge against Bolden of carrying a dangerous weapon is well supported. The testimony is less clear as to whether the money in the cash registers was then in the possession of Owings, as the robbery count specified, but we need not decide that narrow issue since the count was proved by the taking of the pistol which the jury plainly found. See United States v. Spears, supra, 449 F.2d at 955.

III

The law of felony-murder, simple enough to lawyers in its pure statutory form, includes a number of important interpretive glosses which must be made known to the jury for it to deliberate properly on such a count. Appellants claim their jury was not so informed, and we must agree.

While the statute defining the crime, and the court's instructions in this case, require for conviction simply that one "kill another in perpetrating or in attempting to perpetrate any...