Hall v. United States D. C. 35, 7852.

• Decision Date: 24 July 1975
• Docket Number: No. 7852.,7852.
• Citation: 343 A.2d 35
• Parties: Charles W. HALL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 35

343 A.2d 35

Charles W. HALL, Appellant, v. UNITED STATES, Appellee.

No. 7852.

District of Columbia Court of Appeals.

Argued June 26, 1974.

Decided July 24, 1975.

Robert F. Steeves, Washington, D. C., appointed by this court, for appellant.

Justin D. Simon, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Lee Cross, Asst. U. S. Attys., were on the brief, for appellee. James M. McMullin, Asst. U. S. Atty., also entered an appearance for appellee.

Before FICKLING, NEBEKER and YEAGLEY, Associate Judges.

YEAGLEY, Associate Judge:

In a two count indictment appellant and a codefendant were charged with obstructing justice¹ and simple assault.² In the ensuing jury trial the appellant was found guilty on both counts and sentenced concurrently.³ Appellant argues on appeal, inter alia, (1) that the indictment was invalid because it lacked sufficient specificity and failed to allege all of the elements of the obstruction of justice charge and (2) that the trial court erred in receiving verdicts, and sentencing the appellant, on both counts of the indictment because simple assault, on the facts of this case, merged into the charge of obstruction of justice. These two issues are raised by appellant for the first time on appeal. Finding no merit in these arguments or in any of the other issues raised by appellant,⁴ we affirm.

The series of events leading to the instant indictment began when Mr. Freddie Davis reported to the police on May 13, 1973, that he had been the victim of a robbery. In the ensuing investigation Mr. Davis made a photographic identification of Gregory Crawford as one of the men who had robbed him which resulted in the arrest on May 29, 1973, of Gregory Crawford. Later that evening as Mr. Davis was leaving a liquor store at which he had stopped on his way home from work, he was accosted by three men. One of the men grabbed him and asked, "Do you know anything about Gregory being locked up?" When Mr. Davis answered in the negative, he was immediately struck in the face by one of the trio, knocked to the ground, and repeatedly kicked and stomped.

Metropolitan Police officers who arrived shortly after the incident in response to a radio call drove Mr. Davis to Rosedale Street, N.E., where he thought his assailants lived. Mr. Davis identified the appellant as one of his assailants from a group of people who were sitting on the porch of one of the houses there. The officers then called appellant over to the squad car and questioned him, one of the officers noticing what he asserted were blood stains on appellant's hand.⁵ Because a hostile crowd was gathering as the investigation proceeded, the officers drove a block away to await backup units. Upon the arrival of the extra units, the officers returned to the Rosedale Street adress and the appellant and his codefendant were subsequently arrested.

I

Appellant contends for the first time on this appeal that the indictment is defective for failure to charge that appellant knew that the victim, Davis, was to be a witness in the criminal case against Crawford.

To permit a case to go to trial without first raising an alleged defect in the indictment or information can result in a complete waste of the time of the trial court, the parties, counsel, witnesses and jurors. The prosecution should have the opportunity to justify the pleading before trial, to dismiss it, to amend the information or to seek a new indictment. The trial judge should have an opportunity to consider the alleged defect and to rule on the sufficiency of the indictment or information. Consequently, courts of appeal, for good reason, are not disposed to notice alleged errors which are raised for the first time on appeal absent a clear showing of miscarriage of justice. Adams v. Unit States, D.C.App., 302 A.2d 232, 234 (1973): Harris v. United States, 112 U.S.App.D.C. 100, 101, 299 F.2d 931, 932 (1962). The courts have observed, however, that due process requires that one accused of a crime must be fully apprised of the nature of the charge against him. Salinas v. United States, 277 F.2d 914, 916 (9th Cir. 1960). Furthermore, an indictment which is so fundamentally defective that it fails to charge an offense may be struck down on appeal even though it was not attacked in the trial court. United States v. Thomas, 144 U.S.App.D.C. 44 n. 1, 444 F.2d 919 n. 1 (1971). We therefore turn to a consideration of this belatedly raised issue to determine whether the instant indictment charged the offense of obstruction of justice.⁶

Appellant relies on Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419 (1893). Pettibone involved the sufficiency of an indictment for conspiring to obstruct justice. It was based upon the rules of pleading and construction that prevailed long before the adoption of modern rules.

When confronted with quite the same situation in an obstruction of justice case not long ago as to the precedential value of Pettibone, the Seventh Circuit observed:

The Supreme Court has clearly stated that the `old common law rules of criminal pleading' have yielded to the modern practice of disregarding formal defects in indictments. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932). . . . [United States v. De Stefano, 476 F.2d 324, 328 (7th Cir. 1973).]

After observing that the function of the indictment today is to apprise the defendant of the nature of the offense with which he is charged that court added:

In accord with this contemporary view of pleading, decisions dealing with 18 U.S.C. 1503 [which is comparable to D.C.Code 1973, § 22-703] have held that an indictment worded merely in the language of that statute is sufficient [citations omitted] even though the indictment contains no express allegations that the defendant knew that the person he threatened was a potential witness in a pending criminal proceeding. . . .

Similarly, it has been said that "it is now the settled rule in virtually every circuit, that as a general proposition, scienter need not be proven" to establish a violation of 18 U.S.C. § 111 (1970) proscribing assault on a federal officer. United States v. Perkins, 488 F.2d 652, 654 (1st Cir. 1973), cert. denied, 417 U.S. 913, 94 S.Ct. 2612, 41 L. Ed.2d 217 (1974).

Further, the language in the instant indictment, "corruptly endeavored . . . to influence, intimidate and impede [Mr. Davis] in the discharge of his duties as a witness . . ." implies, with sufficient clarity, knowledge that the victim is a witness and an intent to impede that witness in the furtherance of his duties. See also Anderson v. United States, 215 F.2d 84, 89 (6th Cir.), cert. denied, 348 U.S. 888, 75 S.Ct. 208, 99 L.Ed. 698 (1954), where the court, confronted by the Pettibone argument, held the defect was one of form only and not reversible error. In accordance with the foregoing authorities, we hold that the instant indictment charged an offense, fairly apprised the appellant of the crimes alleged, and was sufficiently specific to be pled as a bar to further prosecutions for the same offense.

II

Appellant argues that the trial court committed plain error in not instructing the jury that simple assault was a lesser included offense of obstruction of justice and that it should only consider the assault count if it first found appellant not guilty of obstruction of justice. Appellant's argument founders, inter alia, upon the authority of Fuller v. United States, 132 U.S.App.D.C. 264, 295, 407 F.2d 1199, 1230 (1968) (en banc), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969), in which it was held that the trial court's failure to give a lesser included offense instruction without a request from one of the parties was not, without more, plain error. See also United States v. Heard, 137 U.S.App.D.C. 60, 63, 420 F.2d 628, 631 (1969), cert. denied, 397 U.S. 1016, 90 S.Ct. 1252, 25 L.Ed.2d 431 (1970): Super. Ct.Cr.R. 30.

Courts in this jurisdiction have, however, vacated convictions for lesser included crimes in cases of multiple count convictions when this issue is raised for the first time on appeal. United States v. Heard, supra at 63, 420 F.2d at 631. See also Smith v. United States, D.C.App., 312 A.2d 781 (1973): Skinner v. United States, D.C.App., 310 A.2d 231 (1973): United States v. Johnson, 155 U.S.App.D.C. 28, 475 F.2d 1297 (1973). We still must resolve, then, the question of whether simple assault is a lesser included offense of obstruction of justice in this case.

A lesser included offense has been variously defined as one for which "some of the elements of the crime charged themselves constitute a lesser crime", Sansone v. United States, 380 U.S. 343, 349, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965), and as one "which consist[s] entirely of some but not all of the elements of the greater offense", Pendergrast v. United States, D.C.App., 332 A.2d 919, 924 (1975), and as "one which is necessarily established by the proof of the greater offense." Fuller v. United States, supra at 293, 407 F.2d at 1228.⁷ D.C.Code 1973, § 22-703 proscribes one, inter alia, from "corruptly, by threats or force, endeavor[ing] to influence, intimidate or impede any . . . witness . . . in the discharge of his duties. . . ." It is not necessary for the government to establish that an assault has been committed as an element of a violation of this section. That is to say it is not necessary that the "threats or force" utilized to influence the witness entail physical violence; acts such as blackmail and unfulfilled threats of violence could support an obstruction of justice charge. For example, the appellant in Courtney v. United States, 390 F.2d 521, 523 (9th Cir. 1968), was convicted under 18 U.S.C. § 1503 (1970) (the federal statute analogous to D.C.Code 1973, § 22-703) when, among other things, he threatened to tell a witness' family about her prostitution activities unless she agreed not to testify...