Jones v. United States

• Decision Date: 28 April 1966
• Docket Number: No. 19541.,19541.
• Citation: 361 F.2d 537,124 US App. DC 83
• Parties: Robert S. JONES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

124 US App. DC 83, 361 F.2d 537 (1966)

Robert S. JONES, Appellant, v. UNITED STATES of America, Appellee.

No. 19541.

United States Court of Appeals District of Columbia Circuit.

Argued December 3, 1965.

Decided April 28, 1966.

Petition for Rehearing Denied June 6, 1966.

Mr. Howard Monderer, Washington, D. C. (appointed by this court), for appellant.

Mr. Charles L. Owen, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee. Mr. John C. Conliff, Jr., U. S. Atty. at the time the brief was filed, also entered an appearance for appellee.

Before BURGER, McGOWAN and TAMM, Circuit Judges.

Petition for Rehearing En Banc Denied June 6, 1966.

TAMM, Circuit Judge:

Appellant was found guilty by jury trial of a charge of robbery of a Texaco service station in the District of Columbia. He appeals this conviction, charging that the evidence of his identity as one of the robbers was, as a matter of law, insufficient to support a verdict of guilty. In addition, appellant contends that the trial judge improperly commented on the evidence in the course of his charge to the jury and also refused and failed to properly or adequately charge the jury on the issue of the identification of the defendant.

Briefly summarized, the evidence offered by the Government was to establish the factual situation as outlined hereafter. Washington Corbin, Jr., the night manager of a Texaco gasoline station located in southeast Washington, was on duty at approximately 4:45 a. m. on June 21, 1964, when two men with handkerchiefs covering the lower part of their faces appeared in the service center adjacent to the station's office. While one of the men pointed a shotgun at Corbin, the other removed $350.00 from Corbin's pockets. Thereafter, the robbers marched Corbin "four or five blocks away from the station," apparently in order to delay a telephone call to police. During the march, Corbin was sandwiched between the two robbers, the man wielding the shotgun walking behind him, while the robber who had rifled his pockets walked ahead. During the course of this walking, lasting some six minutes, the handkerchief covering the face of the foremost marcher fell from his face as he turned to speak to Corbin about following him too closely. Corbin testified that he was able to observe this robber's face at that time and positively identified appellant Jones as this robber. The second robber has not been identified.

On August 1, 1964, a detective of the Metropolitan Police Department displayed some 7 to 10 photographs of Negro men of various ages to Corbin. From these photographs Corbin identified appellant's picture as that of the robber whose face he had seen. Four weeks later, on August 28, 1964, the same detective took Corbin into a room in a court-house, asked Corbin if he saw the man who robbed him, and Corbin identified appellant.

I

Appellant claims the evidence offered by the Government is insufficient as a matter of law to establish his identity as one of the perpetrators of this crime. Extensive examination and cross-examination of Corbin was devoted to the means, manner and accuracy of his identification of the appellant. Corbin's identification of appellant was positive. Throughout the trial he referred to appellant as the man whose "mask dropped," the "dark one" of the two, the one who "wore a close hairline," with a "line around the front." Corbin described appellant's walk in the courtroom as somewhat different from his walk on the night of the robbery and testified he did not know appellant before the robbery but was "able to identify" him. Appellant, in demonstrating his mode of walking, was, of course, aware of the purpose of the courtroom demonstration.

Before this court, appellant claims his identification by a single witness under the circumstances of this case should be ruled as inadequate to sustain his conviction. The full facts as to the lighting conditions, duration of the incident, and nature of the facial characteristics upon which the identification was predicated were fully explored before the jury. Appellant seeks to minimize and discredit the complainant's reference to appellant's hairline as an element in his identification. The record indicates that Corbin was not an especially articulate witness and that he undertook to describe the individual elements that combined to totalize his identification of the appellant in response to vigorous cross-examination, which failed to shake his positive identification of appellant as one of the robbers. The defendant, the appellant here, did not take the witness stand.

We are of the opinion that the evidence relating to the identification of the appellant was adequate to permit, and even to require, the submission of the case against the appellant to the jury. We must bear in mind that many laymen are not articulate enough to spell out in detail how they identify a person; but the degree or extent of detail goes to the weight of the testimony and that, of course, is for the fact triers. The uncorroborated testimony of a complainant is sufficient to support a verdict of guilty in a robbery case. Thompson v. United States, 88 U.S.App.D.C. 235, 236, 188 F.2d 652, 653 (1951). We are of the further opinion that the evidence is sufficient to sustain the jury's finding by its verdict that the identity of the appellant was established beyond a reasonable doubt, as required by the court's charge. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); 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).

II

Appellant next alleges that the trial judge improperly stated as facts in his charge to the jury the entire case for the prosecution, particularly on the identification issue and thereby effectively denied appellant a fair trial by jury. The thrust of this charge is addressed to the following summation made by the trial judge in his charge to the jury:

"Now, the evidence here was brief. Washington Corbin, who was in charge of the filling station at 2502 Nichols Avenue, Southeast, in the District of Columbia, testified that at about 4:45 a. m. on June 21st, 1964 he, being alone in the station, saw two men walking in, one of them carrying a shotgun and point it at him, and the other snatched some money from him, according to the testimony, that is, from Corbin, and went through Corbin\'s pockets. Corbin also testified that thereafter they walked him for about four or five blocks and then they released him and told him to keep walking and not to look back and disappeared. He testified that about $350 was taken, of which $150 was Corbin\'s personal property and the balance belonged to the owner of the service station. He testified that he was with the two robbers altogether about 15 minutes. He identified the defendant as being one of the two robbers, not the one with the shotgun, but the one who seized the money from him and went through his pockets." (Emphasis supplied.)

Appellant describes this excerpt as a statement "in a positive form of the evidence of the prosecution which was most adverse to him, without any indication whatsoever that there was any possibility of doubt as to the validity or cogency of the witness." He completely overlooks and ignores the fact that the trial judge's summary was a completely accurate one, amply supported by the evidence. That trial judges of United States courts have authority to comment on the evidence in their jury instructions is so well established as to require no citation of authority. In the present case, however, the trial judge did not comment on the evidence; he merely summarized it, briefly, accurately and objectively. Earlier in his charge, the learned trial judge had instructed the jury that they were the sole judges of the facts, that they must decide the facts themselves — solely upon the basis of the evidence introduced at the trial. Continuing his charge, he told the jury:

"In addition to instructing the jury as to the law the Court has a further function to perform, namely, to summarize, discuss and comment on the facts and on the evidence to the extent to which it seems advisable to do so. This is done, however, solely for the purpose of aiding and assisting the jury in arriving at its conclusions on the facts. The Court\'s summary and discussion and comments on the facts and on the evidence are not binding on you, they are intended only to help you, and you need attach to them only such weight as you deem wise and proper because, as I said before, you are the sole judges of the facts. My instructions are binding on you only as concerns

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