Head v. United States, No. 80-951.

Docket NºNo. 80-951.
Citation451 A.2d 615
Case DateSeptember 14, 1982
CourtCourt of Appeals of Columbia District
451 A.2d 615
James M. HEAD, Appellant,
v.
UNITED STATES, Appellee.
No. 80-951.
District of Columbia Court of Appeals.
Argued March 17, 1982.
Decided September 14, 1982.

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Samuel M. Shapiro, Rockville, Md., appointed by the court, for appellant.

Kathleen E. Voelker, Asst. U.S. Atty., Washington, D.C., with whom Charles F.C. Ruff, U.S. Atty., at the time the brief was filed, John A. Terry, Asst. U.S. Atty., at the time the brief was filed, and Steven D. Gordon, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before KELLY, KERN and PRYOR, Associate Judges.

PRYOR, Associate Judge:


After a jury trial appellant was convicted of two counts of felony murder while armed,1 two counts of premeditated murder while armed,2 four counts of armed kidnaping,3 and two counts of armed robbery.4 Appellant argues (1) that the delay between arrest and trial denied him his right to a

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speedy trial; (2) that there was insufficient evidence to support his convictions; (3) that the trial court incorrectly instructed the jury as to aiding and abetting; and (4) that the trial court erred in admitting evidence of other crimes. We agree there was insufficient evidence to support the armed kidnaping convictions and accordingly we reverse them. Finding appellant's other arguments unpersuasive, we affirm the convictions on all other counts.

I

This case arose from the shooting deaths, on the evening of December 4-5, 1977, of Edward Williams and Angelo Rowe, employees of a service station in Northeast Washington owned by George Morton, Jr. On the afternoon of December 4, 1977, appellant James Head visited the service station when both men were on duty. Shortly afterwards Morton appeared at the station and observed appellant talking to Rowe. Appellant approached Morton to discuss the repayment of an outstanding loan of money. Shortly afterwards, Morton left the premises. He returned around 9:50 p.m. to cash a money order for a friend. However, Rowe and Williams, who were the only employees on duty that night, were absent and the station was locked but not closed for the evening. The tow truck was outside of the bay of the station and the pump lights were on. Rowe's car was visible but Williams' car, a green Mercury with a white top, was absent. Surmising that his employees had gone out to eat, Morton left. Around 11 p.m. he passed the station again and noticed the tow truck was back in its bay.

On the same night two park police officers on routine patrol in Fort Dupont Park discovered the body of Williams lying face down on the ground having been shot three times in the back of the head. Two .38 caliber bullets fired from the same gun were found near the body and one .38 caliber bullet possibly fired from a different gun was subsequently recovered from Williams' head. An autopsy revealed that Williams had died from gun shot wounds to the head fired at close range when he was probably in the same position where he was found.

Morton testified that at approximately 3 a.m. the next morning appellant came to Morton's home in Maryland to repay him the money Head owed. According to Morton, Head stated that Williams had transported him in Williams' car and that Williams wanted to talk to Morton. Clad in his bathrobe, Morton went out to Williams' car but did not see Williams. Instead he saw two other men in the car. Morton stated that appellant, who was wearing a beige or yellow jacket, put a pistol to Morton's head and told him to get in the car or appellant would shoot him. Morton entered the right rear seat of the car and sat next to the man holding a shotgun or rifle. The man in the front seat hit Morton in the mouth with a pistol. As appellant began to drive away, Morton opened the car door next to him and dove out of the car. As Morton ran away, he could hear someone yelling, "shoot him, shoot him." No shots were fired. After running and hiding for approximately fifteen minutes, Morton reached the home of some friends; he immediately called the police and another friend who had been at his house. The police arrived and drove him back to his residence where they recovered a .30-.30 cartridge below Morton's house near the curb.

Between 4 and 5 o'clock that same morning, Lorraine Warren testified that she heard a loud shot and looked out her window to see two men walking in the direction of her house near the Kelly Miller School in Northeast Washington. One of the men, wearing a beige jacket, was carrying a rifle or shotgun. They got into a dark-colored car with a white top and sped away without turning on the lights.

At around 7 a.m. a man walking to work found a body, later identified as Angelo Rowe, lying face down on the playground of the Kelly Miller School. A detective found a flattened lead .38 caliber bullet under a hat next to the body. An autopsy later revealed that Rowe had been shot in the head with a high velocity projectile, probably in the same position where he was

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found. The wound was consistent with that inflicted by a .30-.30 caliber rifle, but no rifle bullet was found.

That morning when Morton returned to his gas station he discovered that his calculator and approximately fifteen blank checks were missing. He noticed papers strewn all over his desk and fresh pry marks on the safe, which contained approximately $1,887. His rifle, a .30-.30, which he kept loaded with one round in the chamber, was also missing. A box of ammunition at the station matched the weight, caliber, and manufacturer's brand of the shell found outside Morton's home. A firearms expert at trial also testified that markings on one cartridge in the box showed that it had been worked through the action of the same weapon as the cartridge found outside Morton's home. Rowe's car was also found at the station.

The police located Williams' car later that day one block from the residence of appellant's former girlfriend, who testified that she had not seen him for five years prior to trial. A detective found Morton's missing calculator under the right front seat of the car.

Appellant presented an alibi defense that on the evening of December 4, he attended a poker game hosted by John Alston at Robert Staley's house in Maryland. Testifying for the government, Alston explained that appellant arrived at the poker game at approximately 8 or 9 p.m., left shortly thereafter, and returned thirty to forty minutes later with a .38 caliber pistol which he asked Alston to keep for him. Alston unloaded it and found two spent shells and one shell lighter in weight with a flat head. Appellant asked Alston for ammunition which Alston refused to give him. Taking his gun, appellant departed within a period of forty-five minutes to an hour. He returned between 1 and 2 a.m., and played poker for approximately forty-five minutes.

Another government witness, Lorretta Blackstone, testified that appellant was at Staley's house that evening, but that he left and did not return for one or two hours. Upon returning, he played poker for a few minutes and left again. She said that she stayed until the game ended and arrived home at around 2:30 a.m.

II

First, appellant argues that the delay between arrest and trial denied him his Sixth Amendment right for speedy trial. Governing our review is the four-pronged test enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), under which we weigh the length of the delay, the reasons for the delay, the appellant's assertion of the right, and the prejudice to him.

The length of delay was slightly less than thirty months, dating from appellant's arrest on December 6, 1977 and extending until trial on June 2, 1980. Where, as here, the delay exceeds one year, appellant has established a prima facie constitutional violation. Asbell v. United States, D.C.App., 436 A.2d 804, 812 (1981); Branch v. United States, D.C.App., 372 A.2d 998, 1000 (1977). Accordingly, the government must "convincingly outweigh" appellant's assertions of a denial of his Sixth Amendment right. Warren v. United States, D.C.App., 436 A.2d 821, 834 (1981); Day v. United States, D.C.App., 390 A.2d 957, 970 (1978). However, the more complex and serious the charges, the easier it is for the government to meet that burden. Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192; Strickland v. United States, D.C.App., 389 A.2d 1325, 1329 (1978), cert. denied, 440 U.S. 926, 99 S.Ct. 1258, 59 L.Ed.2d 481 (1979).

In examining the reasons for the delay, we must impose responsibility on the government for delays due to court congestion and judicial deliberation, but we weigh these more neutral reasons for delay less heavily against the government than deliberate tactics to delay. See Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192; Warren v. United States, supra at 834; Day v. United States, supra at 965. In the instant case, the nine months and one week from arrest on December 6, 1977 until indictment on September 13, 1978 are attributable

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to the government.5 At least part of this period is a neutral delay inherent in the operation of the court and grand jury system. See Turner v. United States, D.C. App., 443 A.2d 542, 546 (1982); Day v. United States, supra at 966. In addition, this period is partially attributable to investigative delay, which differs fundamentally from delay undertaken solely "to gain tactical advantage over the accused." See United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971).

Of the remaining twenty and one-half months, a congested court docket accounted for thirteen and one-half months of delay, which is attributable to the government. However, six of those months resulted from continuances which were recorded with the consent of appellant: the continuance from January 11, 1979 to February 12, 1979 and the continuance from April 16, 1979 to...

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86 practice notes
  • People v. Hayes, No. S004421
    • United States
    • United States State Supreme Court (California)
    • December 31, 1990
    ...(Colo.1983) 661 P.2d 235, 244; State v. Campbell (1941) 2 Terry 342, 41 Del. 342, 22 A.2d 390, 392; Head v. United States (D.C.App.1982) 451 A.2d 615, 624; State v. Glymph (1977) 222 Kan. 73, 563 P.2d 422, 424; Foster v. State (1983) 297 Md. 191, 464 A.2d 986, 998; Robertson v. Sheriff, Cla......
  • Patton v. US, No. 91-CF-826.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 22, 1993
    ...on this ground if there is "no evidence upon which a reasonable mind could infer guilt beyond a reasonable doubt." Head v. United States, 451 A.2d 615, 622 To convict on a charge of first degree murder while armed, the government must establish that the defendant intentionally killed anothe......
  • Wheeler v. U.S., No. 01-CF-271.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • August 16, 2007
    ...where there is no evidence upon which a reasonable [juror] could infer guilt beyond a reasonable doubt") (quoting Head v. United States, 451 A.2d 615, 622 (D.C. 1982)). But, although it was sufficient to convict, the evidence was not overwhelming. While appellant had been using the truck in......
  • Graves v. United States, No. 82-94.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 2, 1984
    ...A.2d at 1000. However, the more serious and complex the charge, the greater is the delay that will be tolerated. Head v. United States, 451 A.2d 615, 620 (D.C.1982); Parks, supra, 451 A.2d at 601; Bethea, supra, 395 A.2d at 790-91; Branch, supra, 372 A.2d at The charges in this case were se......
  • Request a trial to view additional results
86 cases
  • People v. Hayes, No. S004421
    • United States
    • United States State Supreme Court (California)
    • December 31, 1990
    ...(Colo.1983) 661 P.2d 235, 244; State v. Campbell (1941) 2 Terry 342, 41 Del. 342, 22 A.2d 390, 392; Head v. United States (D.C.App.1982) 451 A.2d 615, 624; State v. Glymph (1977) 222 Kan. 73, 563 P.2d 422, 424; Foster v. State (1983) 297 Md. 191, 464 A.2d 986, 998; Robertson v. Sheriff, Cla......
  • Patton v. US, No. 91-CF-826.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 22, 1993
    ...on this ground if there is "no evidence upon which a reasonable mind could infer guilt beyond a reasonable doubt." Head v. United States, 451 A.2d 615, 622 To convict on a charge of first degree murder while armed, the government must establish that the defendant intentionally killed anothe......
  • Wheeler v. U.S., No. 01-CF-271.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • August 16, 2007
    ...where there is no evidence upon which a reasonable [juror] could infer guilt beyond a reasonable doubt") (quoting Head v. United States, 451 A.2d 615, 622 (D.C. 1982)). But, although it was sufficient to convict, the evidence was not overwhelming. While appellant had been using the truck in......
  • Graves v. United States, No. 82-94.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 2, 1984
    ...A.2d at 1000. However, the more serious and complex the charge, the greater is the delay that will be tolerated. Head v. United States, 451 A.2d 615, 620 (D.C.1982); Parks, supra, 451 A.2d at 601; Bethea, supra, 395 A.2d at 790-91; Branch, supra, 372 A.2d at The charges in this case were se......
  • Request a trial to view additional results

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