Coleman v. United States

• Decision Date: 08 September 1961
• Docket Number: No. 15915.,15915.
• Citation: 111 US App. DC 210,295 F.2d 555
• Parties: William C. COLEMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

111 US App. DC 210, 295 F.2d 555 (1961)

William C. COLEMAN, Appellant, v. UNITED STATES of America, Appellee.

No. 15915.

United States Court of Appeals District of Columbia Circuit.

Argued January 11, 1961.

Decided September 8, 1961.

Petition for Rehearing Denied October 10, 1961.

Mr. Edward Bennett Williams, Washton, D. C. (appointed by this court), for appellant.

Mr. Nathan J. Paulson, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., at the time the brief was filed, Carl W. Belcher, Asst. U. S. Atty., at the time the brief was filed and Daniel J. McTague, Asst. U. S. Atty., were on the brief, for appellee.

Before WILBUR K. MILLER, Chief Judge, and EDGERTON, PRETTYMAN, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting en banc.

Petition for Rehearing En Banc Denied October 10, 1961.

DANAHER, Circuit Judge.

The first count¹ of a six count² indictment charged: "On or about January 7, 1960, within the District of Columbia, William C. Coleman, otherwise known as William Carroll Coleman and Ray S. Coleman, otherwise known as Raymond S. Coleman, perpetrated a robbery by stealing, taking and carrying away, by force and violence and against resistance and by sudden and stealthy seizure and snatching and by putting in fear, from the person and from the immediate actual possession of Benjamin Bookoff, property of Benjamin Bookoff, of the value of about $197.00, consisting of $197.00 in money; and in perpetrating that robbery William C. Coleman, otherwise known as William Carroll Coleman and Ray S. Coleman, otherwise known as Raymond S. Coleman, at the time and place aforesaid, unlawfully and feloniously did murder Donald J. Brereton by means of shooting him with a pistol." A third count charged both brothers with robbery. Ray Coleman was acquitted of the murder charge but was convicted of robbery and has not appealed. William C. Coleman was convicted of both offenses as charged and was allowed to appeal in forma pauperis. We appointed present counsel.

Officer Brereton and Officer Winters on January 7, 1960, had volunteered to participate in a "stake-out," in an effort to thwart a possible robbery. They acquainted Benjamin Bookoff with their plan as they secreted themselves in the rear of his liquor store. About 7 P.M., two men, later identified as the Coleman brothers, entered the store. William ordered a bottle of whiskey and tendered a bill in payment. Ray Coleman pointed an automatic pistol at Bookoff and ordered him to lie on the floor. Bookoff called out "They are here," as William from the cash register seized money said by Bookoff to total $197. The police officers commenced to emerge from the rear room as the two robbers fled from the store, separating outside and running in opposite directions.

Appellant, William C. Coleman, ran north, diagonally across Fifth Street toward an alley, which opened from the street in an easterly direction. Both officers pursued William Coleman. Officer Winters in the lead, called "Stop, Police." When the robber failed to stop, Officer Winters fired a shot.

William Coleman then reached a second alley which intersected the first at right angles, and turned, running south, as the officer again called "Stop, Police," and fired a second shot.

As the chart in our appendix makes clear, the last mentioned alley at the point of intersection is 15 feet wide. On the west side is an anchor wire fence. On the east side is a building, the wall of which runs 40 feet to a corner, then east 8 feet. The alley from that point to its southern outlet is 23 feet wide. From his experience in patrolling that beat, Officer Winters was aware of the off-set area. Since he no longer could hear William Coleman running or see him in the alley, he expected Coleman had turned the corner and would there be found.

Officer Winters slackened his speed, made his way along the anchor fence, and reached a point opposite the corner of the wall. He saw Coleman some 20 feet away against the wall. Winters pointed his revolver at Coleman and said "This is the Police. Put your hands up."

Just then, the rookie Officer Brereton, still running but on the east side of the alley near the wall, reached the corner. With his revolver in his hand, he came thus between Winters and Coleman. The latter reached out, grabbed Officer Brereton, spun him around and a shot followed.^*

Officer Brereton was felled by a bullet from his own gun. Officer Winters moved in to help. Coleman had wrested Brereton's gun from him, and thereupon pointed it with arm extended at Officer Winters. At close range he fired a shot at Winters who fell, the bullet having struck him first in the chin, then reentering his neck and passing through his body and out his back. Coleman fired a third shot. Brereton was later found to have been mortally wounded twice. The appellant fled and made good his escape, still carrying Officer Brereton's revolver which he later concealed in an abandoned car where it was found next day.

Other details will be interpolated as and when deemed necessary to our discussion, but such in broad outline were the facts from which the jury deduced William C. Coleman's guilt as to the robbery and felony-murder counts. The robbery, the asportation of its fruits, the immediate pursuit, the savage and desperate attempt by Coleman to shoot his way to freedom and his escape formed one continuous and unbroken chain of events. We are in accord that from all the evidence Coleman was overwhelmingly shown to be guilty as charged but we turn to a consideration of various contentions raised before us.

I

Appellant attacks the verdicts as inconsistent as to the two co-defendants, both of whom could have been found guilty of murder. It may seem illogical, as contended, that the jury returned a not guilty verdict on the felony-murder count³ as to Ray S. Coleman, since both accused were found guilty of robbery. It was, nevertheless, entirely within the prerogative of the jury to acquit on the murder charge as to Ray Coleman, who had not been present at the scene of the killing, and to return a verdict of guilty as to the appellant. William C. Coleman testified, freely admitting his participation in the robbery. He described his flight, indicated his course on the chart, and submitted his version of how immediate pursuit resulted in his grappling with the officer and the shooting. As to the appellant, the chain of circumstances may well have seemed to the jury unbroken and continuous and to have brought the case squarely within the statute and the rule we have previously announced.⁴ Thus viewed, there is no inconsistency in the verdict as to the appellant.⁵ "Whether the jury's verdict was the result of carelessness or compromise or a belief that the responsible individual should suffer the penalty * * * is immaterial. Juries may indulge in precisely such motives or vagaries. Dunn v. United States, 284 U.S. 390 52 S.Ct. 189, 76 L.Ed. 356, 80 A.L.R. 161." United States v. Dotterweich, 1943, 320 U.S. 277, 279, 64 S.Ct. 134, 135, 88 L. Ed. 48. Cf. Hoag v. State of New Jersey, 1958, 356 U.S. 464, 472, 78 S.Ct. 829, 2 L. Ed.2d 913.

II

Appellant argues that he could not properly be convicted of first degree murder on the first count of the indictment which omitted the words "being of sound memory and discretion." On brief he tells us he makes no contention that such omission "invalidates the indictment and requires its dismissal." Correctly he recognizes that such "a contention was rejected in Hill v. United States, 22 App.D.C. 395, 400-402 (1903)." There, the court pointed out, the District of Columbia had taken the common law of Maryland in 1801, and since had followed it. The definition of murder found in the Code in 1903 was that of the common law, and it was "not necessary, in any view of the case, to charge that the accused was of sound mind and discretion, as essential to the validity of the indictment." The view then expressed, unimpaired by any holding of this court over the intervening years, must be considered also in light of the fact that we are treating here of felony-murder. "The applicable statute in the District of Columbia defines murder in the first degree as the killing of another while armed with or using a dangerous weapon in the perpetration or attempted perpetration of a robbery."⁶

Appellant concedes he was "validly indicted for something," but asks on brief "was it for first degree or second degree murder?" There is in our minds no room for doubt as to the offense charged. The appellant was charged with murder in the first degree.⁷

III

We come, accordingly, to appellant's contention that the trial court erred in failing to instruct the jury it might return a verdict of second degree murder or of manslaughter. No reference was made in the charge to these lesser crimes, but in our view the issue was squarely submitted to the jury in terms of the statute⁸ which defined the offense and in light of the evidence which required a finding either of guilty or not guilty — nothing else.

This court following Stevenson v. United States, 1896, 162 U.S. 313, 323, 16 S. Ct. 839, 40 L.Ed. 980, long since ruled that one charged with murder in the first degree was entitled to instructions permitting a jury verdict on lesser included degrees of homicide when the evidence so justified.⁹ Moreover, before the District of Columbia Code was amended in 1940,¹⁰ a killing in the perpetration of a robbery constituted murder in the first degree only if done purposely. If the killing were by accident or otherwise, even in the course of a robbery, it was not murder in the first degree.¹¹

The Attorney General referred to the Jordon case in his recommendation that the District Code be amended. He argued that the word "purposely" should be "limited to a murder committed with deliberate and premeditated malice" and that it had "no proper function in connection with homicides committed in the perpetration...