Hemphill v. United States, 21432.

• Decision Date: 12 June 1968
• Docket Number: No. 21432.,21432.
• Citation: 402 F.2d 187,131 US App. DC 46
• Parties: James HEMPHILL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

131 US App. DC 46, 402 F.2d 187 (1968)

James HEMPHILL, Appellant, v. UNITED STATES of America, Appellee.

No. 21432.

United States Court of Appeals District of Columbia Circuit.

Argued March 12, 1968.

Decided June 12, 1968.

Mr. Michael H. Gottesman, Washington, D. C., (appointed by this court) for appellant.

Mr. Albert W. Overby, Jr., Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before WRIGHT, TAMM and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

This appeal from convictions of first degree premeditated murder and assault with a dangerous weapon raises three issues: (1) Sufficiency of the Government's evidence as to premeditation; (2) Permissibility of testimony by eye witnesses identifying defendant; (3) Propriety of prosecutor's closing argument.

1. Sufficiency of the Government's evidence on premeditation.

This court is of the view that the prosecution presented ample evidence to show that appellant was guilty of an intentional and brutal murder. However, we do not find that its evidence as to premeditation, as to a second reflection in addition to intention, was sufficient to withstand appellant's motion made at the close of the Government's case for acquittal as to first degree murder.¹

The evidence adduced by the prosecution, largely the testimony of Mrs. Mary Southerland, grandmother of the victim, 10-year old Phillip Richardson, showed a savage killing. Appellant was an acquaintance of Mrs. Southerland, and had been an occasional visitor at her home. They had met when they were neighbors, before the Southerlands moved several blocks away. On the evening of March 24, 1966, appellant stopped by unexpectedly at the Southerland house. Mrs. Southerland and Phillip were watching television. Mr. Southerland was not at home. Appellant asked for, and got, twenty-five cents towards a fifth of wine, and shortly after he bought it he returned to the house. There is no evidence that he had been drinking prior to that. Appellant and Mrs. Southerland then talked for more than an hour, laughing and chatting amicably with no heated discussions, arguments, or threats. Both drank some wine; neither very much. Asked whether appellant did anything unusual during their discussion, Mrs. Southerland said only that he "kept getting up, walking back and forth to the window," and asked repeatedly when Mr. Southerland was expected home.

As the evening wore on, Phillip went upstairs to go to bed. Mrs. Southerland grew tired and gently suggested that appellant go, because she wished to go to sleep. Appellant did not pick up this suggestion. At about 10:40 p. m. Mrs. Southerland grew very drowsy and "dropped my head down in my hand." She stirred and reached over to get something from the table, at which point "something struck me on the side of the head." A succession of blows knocked her to the floor. Unable to defend herself, she lay still. Although Mrs. Southerland, who was blind in one eye, did not actually see her assailant strike, she was positive that it was appellant. Other than Phillip, he was the only person in the house. He was standing behind her.

While lying on the floor, Mrs. Southerland heard "quick footsteps." She thought they were headed for the front door. Slowly she started to drag herself across the room to her rear door and the backyard. Unexpectedly, she heard her grandson "screech" in his upstairs room, and then she herself began to scream. She finally worked her way through the door and into the backyard. Suddenly two more blows hit her. With these she passed out. When the police arrived at the Southerland house Phillip Richardson was found on the bed in his bedroom. The lad, his bed, the walls, the floors, all were covered with blood. He had been hit repeatedly with a blunt instrument, and the blows to his head killed him.

In considering whether premeditation is permissibly inferred from this evidence we revert to the opinions in Austin v. United States,² and Belton v. United States.³ In Austin the evidence showed a killing caused by twenty-six major stab wounds from a pocket knife. There was no testimony indicating motive. The court held the evidence was as consistent with an impulsive and senseless frenzy as with premeditation, and did not permit a reasonable juror to find beyond reasonable doubt that there was premeditation. In Belton, the court upheld a first degree murder conviction where the evidence showed that defendant quarreled with his common law wife, brought a loaded gun with him to her apartment, and shot her soon after he entered.

In the present case when the trial judge asked what evidence the Government was relying on to establish premeditation, the prosecutor referred only to the fact that the killer had climbed a flight of stairs to Phillip's room. Though the time to go upstairs is more likely to be measured in seconds than minutes, we may assume it was appreciable enough to have been consistent with a killing that was the product of deliberation rather than impulse. But the jury may not find premeditation solely from the fact that defendant had time to premeditate. This is established by Austin, where there was time enough for premeditation but the facts of the killing were equally consistent with a mind in the grip of a sustained frenzy. The prosecutor made no attempt to show animosity or any other motive for the killing by appellant. Appellant and Mrs. Southerland were friends, and they had spent the evening in ordinary and casual conversation.

We consider evidence relied on by our dissenting colleague: Mrs. Southerland testified that defendant made several trips to the window, looked out and returned to his chair. Each time he asked her when George, her husband, would be home and she replied, about 1 a. m. He also asked whether her daughter was coming over. "It was like he was looking for someone, expecting someone, by going to the window and kept asking that question." Two or three times defendant said he was leaving and Mrs. Southerland bade him goodby, saying she enjoyed his company and suggesting he return when George would be at home, to be "more company for you than I." At 10:40 p. m., 10 minutes after defendant had gone to the window again, Mrs. Southerland said she was tired and had to go to bed, and would not wait up for George as she usually did. Defendant said yes, he had to get home too. He went to the window and leaned on the windowsill, looking up and down the street, for what seemed to her a long time. She dropped her head in her hand, repeated she felt tired, and when she reached over to the table, for cigarettes or a newspaper, she was struck on the head.

What was the significance of this walking to the window? Is it probative that he was harboring an intent to kill or maim? Such an inference while not inconceivable is surely highly speculative. All Mrs. Southerland thought at the time, and it certainly seems the more natural explanation, is that he was looking for some one. True the jury could also consider that defendant did strike her, but the issue is whether these blows reflected some spur-of-the-moment impulse or a preceding premeditation and reflection. Could a reasonable man fail to harbor a reasonable doubt as to the existence of prior premeditation and deliberation? We think not — especially taking into account the standard, properly charged by the trial judge,⁴ that requires a reasonable man to believe in the facts of guilt without even "such a doubt as would cause him to hesitate to act in matters of importance to himself."

The essence of the matter is that this perplexing testimony serves to raise doubts rather than resolve them — especially when conjoined with the prosecution's failure to bring out whether defendant brought the murder weapon with him or whether it merely happened to be lying about in the Southerland home, available at the very moment defendant first formed an intent to kill.

Although the Government preserves the contention that it could be inferred from appellant's going to the window, etc., and ignoring the "veiled" request that he leave, that he had a preconceived intent to do harm to Mrs. Southerland and her grandson, the Government emphasizes that there was cogent evidence of a specific purpose in the fact that appellant used a hammer, and that it was inherently improbable that he picked up a hammer in Mrs. Southerland's living room. That brings us to the heart of this case. A prosecutor seeking a first degree murder conviction for premeditated murder has an obligation to bring forward evidence indicating not only intent to kill but also facts from which premeditation may be inferred. In the absence of other testimony truly probative of premeditation and deliberation, the origin of the murder weapon is of undeniable significance.⁵ Yet the Government went to the jury on evidence as to the premeditation that was at best highly speculative, without introducing evidence on the simple yet meaningful point of whether defendant brought the hammer with him.

Now the Government asks this court to close the gap in its proof with the assumption that people do not usually have hammers lying about, and therefore appellant probably brought the hammer with him. We think it inappropriate to forge a chain of such surmise in a first degree murder case where the gaps in this aspect of Government evidence are so easily closed by careful preparation.

Since it cannot permissibly be assumed that defendant brought the hammer with him, there is no basis for permitting the jury to infer that the evidence established beyond a reasonable doubt that the initial assault on Mrs. Southerland was preceded by premeditation. The attack was without warning or apparent reason. Indeed, the prosecutor himself seems to have recognized this in stressing the time to climb the stairs as the basis for inferring premeditation...