Jackson v. United States, 6918.

• Decision Date: 19 December 1974
• Docket Number: No. 6918.,6918.
• Parties: John L. JACKSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

329 A.2d 782

John L. JACKSON, Appellant, v. UNITED STATES, Appellee.

No. 6918.

District of Columbia Court of Appeals.

Argued September 18, 1973.

Decided December 19, 1974.

COPYRIGHT MATERIAL OMITTED

George P. Lamb, Jr., Washington, D. C., appointed by the court, for appellant.

Carey G. Stark, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and John S. Ransom, Asst. U. S. Attys., were on the brief, for appellee.

Before KELLY, PICKLING and KERN, Associate Judges.

KELLY, Associate Judge:

In this appeal from a conviction for first degree murder¹ appellant claims that any one of five errors committed at the trial level requires reversal. Specifically, appellant asserts that (1) the charges against him and a codefendant, Howard Schofield, were improperly joined in a single indictment; (2) the cases should have been severed at trial; (3) the prosecutor prejudicially frustrated his lawful pretrial discovery efforts; (4) the trial court admitted testimony of witnesses in violation of the Bruton² rule (5) the opening and closing statements of the prosecutor included improper and prejudicial remarks. We affirm.

I

At about 7:00 p. m. on October 17, 1971, John L. Jackson and his girl friend, Nynese Williams, drove to Twelfth and U Streets, N.W. Jackson parked near the corner of the intersection, got out of the car and, instructing Miss Williams to wait walked around the corner out of sight. Moments later he reappeared in the company of one Norman Pannell, who was carrying a stick. The two men stopped near the parked car and conversed for a few moments, with their voices growing progressively louder. Suddenly, Jackson drew a gun from his pocket and shot Pannell, then returned to the car and drove off, leaving Pannell dying on the sidewalk. Pannell died shortly after the police arrived. Although no gun was observed by the officers who examined the dying man lying on the sidewalk, a gun fell from the area of his waist as his body was being lifted onto a stretcher.

Some months later a grand jury returned a four count indictment in which it charged Jackson with first degree murder and carrying a pistol without a license and Howard Schofield, Jackson's friend, with being an accessory after the fact by threatening a material witness³ and with obstructing justice by threatening and intimidating the same witness.⁴ The jury convicted appellant on both counts with which he was charged. They acquitted his codefendant Schofield of the charge of obstructing justice.⁵

Miss Nynese Williams was the government's first witness. She testified that she was a drug user; that Jackson dealt in drugs, and that both she and Schofield had distributed drugs for Jackson. After an incident when Schofield was shot in the ankle, she said, Jackson and Schofield had each told her he believed Norman Pannell had been the assailant. Miss Williams testified that she had heard Jackson and Schofield discussing their desire to kill Pannell a number of times, primarily bickering over who would do it. More importantly, she testified concerning the actual slaying and its aftermath.

According to Miss Williams, just prior to the shooting she heard Pannell say, "I told you I didn't do it." Jackson thereupon drew his gun and Pannell took a step backward, dropping the stick he was carrying and placing his hands at his sides with the palms forward. Jackson fired once, then several times in succession. He then returned to the car and drove home. Schofield and his girl friend, Maggie Hawkins, were at the apartment when Jackson and Miss Williams arrived and Jackson told them "I downed the dude".⁶ Later that evening Jackson told her that Pannell had it coming to him and asked her if she thought he was sadistic. He also said he had gone looking for Pannell. Miss Williams added that Jackson had told her not to talk about the murder and had threatened to kill her if she ever did so. When they later read the newspaper account of the murder Jackson told her he had not known Pannell was carrying a gun at the time.

Several months after the shooting Miss Williams was called to testify before a grand jury. The day following her last appearance Schofield called her and asked her to go for a ride. She declined and when Schofield came over to her house and repeated his entreaties, she again declined. Miss Williams called the police, believing the request was meant as a threat on her life. The officer to whom she spoke testified at trial, confirming that she had sounded frightened when she had called, and that he had sent a patrol car over to guard her home. In fact, he had gone over there himself to reassure her.

Two neighborhood residents who witnessed the shooting from nearby were also government witnesses. David Tyrone Edwards testified that Pannell had grabbed his stomach after Jackson fired the first shot. After the shooting, he said, he observed a revolver on the ground beside Pannell. The other witness, Milton Dorsey Washington, stated that Pannell went for his waist as if going for a gun just before being shot by Jackson.

Norman Pannell's widow, Valeria Pannell, testified that on a prior occasion she saw her husband shoot Schofield and had, in fact, tried to stop him. She said the shooting followed a discussion between her husband and Schofield during which her husband, a user of heroin and cocaine, accused Schofield of selling him bad drugs. She conceded that her husband had been a drug user and had dealt in drugs to obtain cocaine for himself. In response to a question concerning whether she knew Jackson she replied that she had never heard his name before her husband's death. She also testified that her husband always carried a gun in his belt.

At the close of the government's case, the court granted Schofield's motion for a judgment of acquittal with respect to the count of being an accessory after the fact, but denied the motion as to the charge of obstructing justice. Jackson then moved for mistrial and, when that motion was denied, renewed a motion for severance previously made both before and at the start of trial. He also moved for a judgment of acquittal. All motions were denied.

Jackson took the stand in his own behalf and denied using or dealing in drugs, or asking anyone to do so for him. He also denied that he discussed killing Pannell with Schofield at any time and claimed the shooting was in self-defense. According to Jackson's testimony, Pannell approached him carrying a stick and with something bulging from his waistband. When Pannell swore at him and raised the stick in an attempt to strike him, Jackson blocked it with his arm and the stick was dropped. Pannell then reached toward his waist as if going for a gun and Jackson, fearing for his life, drew his gun and fired.⁷ Jackson added that he had been afraid of Pannell since the day after Schofield had been shot and he learned Pannell was after him as well. He also admitted telling Schofield that he had "downed the dude".

In an effort to discredit Miss Williams' testimony Jackson testified that she had lived with him for a time but had moved out after a fight in August of 1972. He also proffered, out of the presence of the jury, that if he testified Schofield would deny that he and Jackson had ever discussed killing Pannell before his death. Schofield declined to take the stand, however, unless his case was severed from that of Jackson. The trial judge refused to grant a severance and, as a consequence, Schofield did not testify.

II

Appellant claims that the joinder of defendants under Super.Ct.Cr.R. 8(b)⁸ was initially improper because the charge that Schofield was an accessory after the fact to murder was included in the indictment as an artifice to obtain a joint trial. His argument is that the joinder was designed (1) to allow the government to introduce a broader range of otherwise inadmissible evidence at trial, (2) to preclude appellant from obtaining the testimony of his codefendant as a witness on his behalf, and (3) to prevent appellant from commenting on the character and activities of his codefendant. He also charges that the frivolous nature of that count was confirmed by its dismissal for want of evidence to support it at the close of the government's case.

The short answer to appellant's complaint is that joinder of defendants is proper tinder Rule 8(b) "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. . . ." [Emphasis supplied.] Count three of the indictment returned against Schofield alleged such participation. The fact that the count was subsequently dismissed for lack of evidence does not infect the joinder itself for it has been held that the allegation of participation in the indictment justifies the joinder. Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960); see also 1 C. Wright, Federal Practice and Procedure: Criminal § 144, at 325 (1969). Moreover, while it rests upon inference, the evidence shows a sufficient nexus between Jackson and Schofield to support the inclusion in the indictment of a charge that Schofield assisted Jackson by threatening a material witness to the crime, albeit the trial court dismissed the charge at the close of the government's case. Accordingly, the initial joinder was proper.

III

Many of appellant's arguments against joinder apply equally to his contention that the court erred in failing to grant his repeated motions for severance. Before trial, at its outset, and after the prosecution submitted its evidence, appellant moved that Schofield's case be severed from his own so that he might have the benefit of Schofield's testimony in defense. On the last occasion Jackson proffered to the court that Schofield would deny that he had plotted or discussed with Jackson the killing of Pannell thus refuting Miss Williams' testimony to the contrary. Schofield joined in the motion and...