Howard v. United States

• Decision Date: 06 December 1967
• Docket Number: No. 20328.,20328.
• Citation: 389 F.2d 287,128 US App. DC 336
• Parties: Thomas HOWARD, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

128 US App. DC 336, 389 F.2d 287 (1967)

Thomas HOWARD, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 20328.

United States Court of Appeals District of Columbia Circuit.

Argued August 16, 1967.

Decided December 6, 1967.

Petition for Rehearing Denied January 10, 1968.

COPYRIGHT MATERIAL OMITTED

Mr. James J. Bierbower, Washington, D. C., (appointed by this court) for appellant. Messrs. Manuel C. Avancena and James K. Hughes, Washington, D. C., also filed a brief for appellant.

Mr. Edward T. Miller, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and John A. Terry, Asst. U. S. Attys., were on the brief, for appellee.

Before BURGER and ROBINSON, Circuit Judges, and DAVIS,^* Judge, United States Court of Claims.

DAVIS, Judge.

Appellant Thomas Howard, Jr., was indicted and tried for first degree murder. Having denied appellant's motion, made after the Government's opening argument and again at the conclusion of the prosecution's case, for acquittal of the offense in the first degree, the District Court charged the jury on first degree murder, second degree murder, and manslaughter. The jury returned a verdict of murder in the second degree, and Howard was sentenced to imprisonment for fifteen years to life.

Since appellant does not challenge the sufficiency of the evidence that he killed the victim, it is unnecessary to give a full précis of the evidence. Joyce Brigmon, a seven year old girl, was murdered on the evening of November 26, 1965, while alone in the first floor apartment of her mother, Iris Brigmon, and her mother's common-law husband, Charles Williams. The evidence showed that her throat was brutally slashed after she screamed "Daddy", apparently for help. There were no eyewitnesses and the Government's case connecting appellant with the crime chiefly consisted of the circumstantial evidence that he was very near the apartment immediately prior to the crime, that very shortly after the killing he was discovered by Charles Williams in the yard just outside the apartment, that he fled upon being discovered and discarded some of his clothing, and that human blood stains were found on the clothing he threw away in flight. Appellant's testimony was that he discovered the girl's body after she had been murdered and had picked her up, only to be frightened away when Charles Williams appeared and threatened to kill him.

We treat first with a number of secondary grounds for reversal put forward by appellant and then, separately, with his primary point.

I.

A. Appellant contends that the instruction on circumstantial evidence, though concededly embodying the minimum elements required for such a charge and though no objection to it was raised at trial, provides ground for reversal because it was too brief to impress upon the jury the caution to be exercised in a case heavily laced with circumstantial evidence. But it is settled that "Once the judge has made an accurate and correct charge, the extent of its amplification must rest largely in his discretion." United States v. Bayer, 331 U.S. 532, 536, 67 S.Ct. 1394, 1396, 91 L. Ed. 1654 (1947); see Holland v. United States, 348 U.S. 121, 141, 75 S.Ct. 127, 99 L.Ed. 150 (1954); Temblador v. Hamburg-American Lines, 368 F.2d 365, 367 (C.A. 9, 1966); Chicago, R.I. & P.R.R. Co. v. Emery, 233 F.2d 848, 850 (C.A. 8, 1956); United States v. Center Veal & Beef Co., 162 F.2d 766, 772 (C.A. 2, 1947) (L. Hand, J.). This is especially true when, contrary to Fed.R.Crim.P. 30, no proper objection is made to the instruction, and, thus, an appellate court, to reverse, must find plain error within Fed.R.Crim.P. 52(b). See, e. g., Lopez v. United States, 373 U.S. 427, 436, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Namet v. United States, 373 U.S. 179, 190-191, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963). Here, the trial judge emphasized that he was adopting this circumstantial-evidence charge (modeled on the Standardized Jury Instructions revised by the Junior Bar Section of the Bar Association of the District of Columbia) because of its brevity and clarity; trial counsel did not object to this explicit exercise of discretion; and the evidence was neither complex nor abstruse. We decline to find error, and certainly there was no plain error.¹

B. Appellant also urges that the evidence was insufficient to support a finding of malice aforethought. We are unable to conclude, however, "that reasonable jurymen must necessarily have * * * a reasonable doubt" that Joyce Brigmon was killed with malice. Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). The horrible slashing with a sharp instrument of a screaming seven-year-old girl's throat by an adult intruder most certainly allows, if it does not require, the conclusion that the "homicide was accompanied by the intention to cause death or grievous bodily harm * * *." Austin v. United States, 127 U.S.App.D.C. 180, 184, 382 F.2d 129, 133 (1967); see Liggins v. United States, 54 App.D.C. 302, 297 F. 881 (1924); United States v. Edmonds, 63 F.Supp. 968, 970-971 (D.D.C.1946).²

Although the point is not mentioned by counsel, we feel constrained by Fed.R.Crim.P. 52(b) and Belton v. United States, 127 U.S.App.D.C. 201, 382 F.2d 150 (1967), to note that a phrase in the instruction on malice is incorrect according to Belton. Both sets of instructions state that "the law infers" malice from the use of a deadly weapon. Belton holds that the quoted phrase is erroneous and that, if an appropriate objection is made, a trial court must instruct the jury that only it may decide whether to draw from all the circumstances, including use of a deadly weapon, the inference of malice aforethought. But, in the absence of an objection, we declined in Belton to find plain error There is no more reason to do so here especially since the proof of malice was not weak or equivocal.³ In this case we are aided, too, by the trial court's final words on malice, which helped to correct the error: "you may deduct sic malice from the act itself and the instrument shown."⁴ Even if a portion of a trial court's instructions is incorrect, an appellate court need not reverse if the error is "cured by a subsequent charge or by a consideration of the entire charge * * *." Southern Pac. Co. v. Souza, 179 F.2d 691, 694 (C.A. 9, 1950); accord, Redfield v. United States, 117 U.S. App.D.C. 231, 328 F.2d 532 (per curiam), cert. denied, 377 U.S. 972, 84 S.Ct. 1654, 12 L.Ed.2d 741 (1964).

C. Another argument is that the trial court committed reversible error by restricting the cross-examination of Charles Williams — step-father of the victim and the first witness for the prosecution — on the subject of whether he had been present the previous day at voir dire for the selection of the jury. Earlier on the day of the attempted cross-examination, Williams had stated under oath, but out of the presence of the jury, that he had been at the voir dire and had been identified to the panel.⁵ Defense counsel did not attempt to cross-examine at that time but shortly thereafter, on cross-examination in open court, he did raise this problem and asked Williams several questions on the latter's presence in the courtroom at voir dire. Although Williams' evidence was consistent with the record and with the recollection of the trial court and the prosecution, defense counsel thought he had been absent and sought to test his credibility and competency by further inquiry into the matter of whether he had stood to be identified. The court refused to allow this line of questioning.

Although opportunity to cross-examine is a fundamental right demanding great respect (e. g., Alford v. United States, 282 U.S. 687, 691-692, 51 S.Ct. 218, 75 L.Ed. 624 (1931)), the courts have also recognized that regulation of the extent and scope of cross-examination must generally lie within the discretion of the trial court⁶ and reversal is warranted only where an abuse of discretion leads to prejudice.⁷ We believe that the District Court did not abuse its discretion or commit prejudicial error when it limited the cross-examination of Charles Williams. He was asked and answered several questions on the subject of his presence at the voir dire. No substantial basis exists for believing that he was not then present or identified. We will not reverse the judge for cutting off what he reasonably believed (partly on the basis of his own recollection) was a fruitless endeavor that would succeed only in needlessly proliferating and confusing the issues. Cf. Lee v. United States, 125 U.S.App.D.C. 126, 128-129, 368 F.2d 834, 836-837 (1966). This is all the more so since the questions posed were designed solely to test Williams' general credibility. A trial court has much more leeway with respect to cross-examination for that purpose than with cross-examination on subjects raised on direct. See Collazo v. United States, 90 U.S.App.D.C. 241, 252-253, 196 F.2d 573, 584, cert. denied, 343 U.S. 968, 72 S.Ct. 1065, 96 L.Ed. 1364 (1952); Wright v. United States, 87 U.S.App.D.C. 67, 183 F.2d 821 (1950) (per curiam); Lindsey v. United States, 77 U.S.App.D.C. 1, 3, 133 F.2d 368, 370 (1942).

D. We need touch only briefly on appellant's assertion, as a ground for reversal, that the evidence produced by the Government at the preliminary hearing was insufficient to sustain a finding of probable cause.⁸ Prior to this appeal appellant had not raised this issue at any time. In these circumstances, and after indictment and trial, the contention finds no support whatever in Ross v. Sirica, 127 U.S.App.D.C. 10, 380 F.2d 557 (1967), rehearing en banc denied, 127 U.S.App.D.C. at 14, 380 F.2d at 561 (1967), or in any of the separate statements of the judges on the petition for rehearing.

II.

The primary focus of the appeal is that the trial court erred in denying the motion for acquittal of murder in the first degree and...