Day v. United States, 11272.

• Citation: 390 A.2d 957
• Decision Date: 10 July 1978
• Docket Number: No. 11272.,11272.
• Parties: Edward D. DAY, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

Page 957

390 A.2d 957

Edward D. DAY, Appellant, v. UNITED STATES, Appellee.

No. 11272.

District of Columbia Court of Appeals.

Argued October 19, 1977.

Decided July 10, 1978.

Rehearing and Rehearing En Banc Denied November 21, 1978.

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Peter Sissman, Arlington, Va., with whom Lawrence Lataif, Arlington, Va., was on the brief, for appellant.

E. Thomas Roberts, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.

Before KELLY^* and FERREN, Associate Judges, and PAIR, Associate Judge, Retired.

FERREN, Associate Judge:

Appellant asks us to set aside his convictions on charges of first-degree felony murder (D.C.Code 1973, § 22-2401) and armed robbery (D.C.Code 1973, §§ 22-2901, -3202) on two grounds: (1) the trial court erred in refusing his request for jury instructions on the lesser offenses of manslaughter, assault with a deadly weapon, and assault; and (2) the 32½-month delay between arrest and trial violated his Sixth Amendment right to a speedy trial. We find no error or constitutional infirmity; we affirm appellant's convictions.

I

On the evening of November 1, 1973, Joseph Sutton, a 72-year-old pensioner residing at an apartment at 1341 East Capitol Street, visited his cousin, Gorham Pearsall, who lived a few blocks away. The two of them walked to 18th and D Streets, S.E., to visit a mutual friend whose wife had recently passed away. Mr. Pearsall testified that after spending approximately an hour sharing a pint of liquor with their friend, he and Mr. Sutton walked back toward their own neighborhood. He further testified that he last saw Mr. Sutton at approximately 11:00 p. m. in the vicinity of 14th Street and Massachusetts Avenue, S.E. At that point, Mr. Sutton was in his normal state of health and was carrying some money from a pension check he had cashed that day.

According to Mrs. Joan King and her two sons, Michael and Maurice, whose apartment at 1341 East Capitol was across the hall from Mr. Sutton's and overlooked the entrance to the building, Mr. Sutton returned home on November 1 at about 9:00 p. m. Michael King, who was ten years old at the time, testified that as Mr. Sutton started up the walkway to the apartment he was attacked from the rear by a man whom Michael King identified as appellant. When Mr. Sutton attempted to stand up, appellant assaulted him twice more and then reached into Mr. Sutton's pocket. Appellant pulled something out, discarded part of it, and put the rest of it into his own pocket.

Maurice King, then twelve years old, testified to witnessing the last few minutes of this assault from his apartment window overlooking the building's entrance. He said that he had seen a stick in the hands of appellant (whom he identified) about the size of a broom handle, although he had not seen appellant use it on the decedent. Mrs. King testified that she had arrived at the window just in time to see a man (whom she also identified as appellant) walk away from the scene, and that she then had gone down to the sidewalk where she found Mr. Sutton with a swollen face and blood on his clothes. There was also blood on the ground near where he lay. She assisted Mr. Sutton up to his apartment where she found him the next morning lying on the floor, his face still swollen and covered with dried blood. The police were notified.

Although he had difficulty speaking, Mr. Sutton told Officer Robert Condit of the Metropolitan Police Department that as he was coming in the front door of the building at 1:00 a. m. he had been approached by a man who had first asked him, "Where is your money?" When Mr. Sutton did not reply, the man started to beat him on the back — he thought with a stick.

Mr. Sutton was taken to the hospital, suffering from massive swelling of the facial and neck area, a fractured rib and mandible, and a broken hyoid bone. In his struggle to clear his breathing passage, he vomited, aspirated, and as a result suffered cardiac arrest. Although he was revived, he remained in a comatose state from which he never recovered. When he died two weeks later, the cause of death was determined to be a general infection of the lungs and body, meningitis, and jaundice.

The defense case was limited to one witness, Melvin Clark, Jr., a young man who testified that he had observed Mr. Sutton being assaulted by two persons other than appellant. Melvin Clark further testified, contrary to all other witnesses, that the incident had taken place about 8:00 p. m. when it was "semi-dark" during the spring or summer. The prosecutor elected not to cross-examine.

II.

The trial judge instructed the jury on the crimes of murder in the first degree, murder in the second degree, armed robbery, and robbery, all of which were included in the indictment.

A. Request for Lesser-Included Offense Instructions

Appellant contends that the trial judge erred in denying requests for additional instructions on the crimes of manslaughter, assault with a deadly weapon, and simple assault. A defendant is entitled to a lesser-included offense instruction when (1) all elements of the lesser offense are included within the offense charged, Sansone v. United States, 380 U.S. 343, 349-50, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Berra v. United States, 351 U.S. 131, 134, 76 S.Ct. 685, 100 L.Ed. 1013 (1956); Pendergrast v. United States, D.C.App., 332 A.2d 919, 924 (1975), and (2) there is a sufficient evidentiary basis for the lesser charge. Id.; United States v. Corner, 137 U.S.App.D.C. 214, 218, 421 F.2d 1149, 1153 (1970).

As to the first requirement, appellant is correct that manslaughter "long has been recognized as a lesser included offense of second degree murder." Pendergrast v. United States, supra at 924. Accord, Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1896); United States v. Corner, supra; Belton v. United States, 127 U.S.App.D.C. 201, 382 F.2d 150 (1967). The answer is more complex with respect to the requested assault instructions, but there is support for the view that assault can be a lesser-included offense in a robbery, see United States v. Bauer, 198 F.Supp. 753 (D.D.C.1961), and even dicta to the effect that assault can be a lesser-included offense in a homicide. Logan v. United States, 144 U.S. 263, 307, 12 S.Ct. 617, 36 L.Ed. 429 (1892) (dicta); United States v. Hamilton, 182 F.Supp. 548, 551 (D.D.C.1960) (dicta).¹ We therefore cannot say that appellant's request for lesser-included offense instructions must be automatically denied. We are obliged, as a result, to apply the second requirement for a lesser-included offense — the need for a sufficient evidentiary basis — to which we now turn.

A lesser-included offense instruction will not be proper unless proof of the greater offense charged will require the jury to find a disputed fact that need not be found to prove the lesser offense. Sansone v. United States, supra. Once a defendant asserts that there is such a factual dispute, the court must give a lesser-included offense instruction if "there is some evidence upon the subject." Stevenson v. United States, supra, 162 U.S. at 314, 16 S.Ct. at 839. This evidentiary requirement is a minimal one; it means "`any evidence' . . however weak." Belton v. United States, supra, 127 U.S.App.D.C. at 206, 382 F.2d at 155. Accord, Pendergrast v. United States, supra, at 925.

In United States v. Comer, supra, 137 U.S.App.D.C. at 219, 421 F.2d at 1154, the District of Columbia Circuit Court of Appeals adopted the procedural approach of the First Circuit in Driscoll v. United States, 356 F.2d 324, 327 (1st Cir. 1966), vacated on other grounds, 390 U.S. 202, 88 S.Ct. 899, 19 L.Ed.2d 1034 (1968), requiring a two-step inquiry:

"We take Sansone to mean that [1] when the government has made out a compelling case, uncontroverted on the evidence, on an element required for the charged offense but not for the lesser-included offense, there is [2] a duty on defendant to come forward with some evidence on that issue [i. e., on the element uniquely required for the charged offense] if he wishes to have the benefit of a lesser-included offense charge. * * * Two prerequisites [to denying a lesser-included offense instruction] seem vital: [a] that there be no factual dispute and [b] that a finding contrary to the only evidence on the issue would be irrational." (Emphasis by D.C.Circuit Court.)

It is important to note, therefore, that even when there is no dispute about the facts tending to prove the element uniquely required for the charged offense, it is still possible that a lesser-included offense instruction will be necessary, for "the court must appraise all the testimony and evidence to determine whether it is capable of more than one reasonable inference." United States v. Comer, supra, 137 U.S. App.D.C. at 219, 421 F.2d at 1154. On undisputed facts capable of only one inference, however, no lesser-charge instruction will be proper, let alone required.

In the present case, the element of the second-degree murder charge not required for manslaughter is malice; thus, the first step toward a lesser-included offense charge for manslaughter can be taken. However, we do not find "`any evidence' . . . however weak" that would support a jury finding of no malice. It is undisputed that Mr. Sutton was brutally beaten. The only dispute was whether appellant or others did it. There was no evidence of provocation, self-defense, or any other circumstance that would negate a jury finding of malice. Any conclusion by the jury to the contrary "would be irrational." Id.

As to the requested assault instructions, the only defense witness, Melvin Clark, Jr., testified to seeing two persons, other than appellant, beat Mr. Sutton. Therefore, in his opening and closing statements to the jury, defense counsel suggested that Mr. Sutton was the...