Ownes v. United States

• Citation: 497 A.2d 1086
• Decision Date: 30 August 1985
• Docket Number: No. 83-1171.,83-1171.
• Parties: Jimmie V. OWENS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

497 A.2d 1086

Jimmie V. OWENS, Appellant, v. UNITED STATES, Appellee.

No. 83-1171.

District of Columbia Court of Appeals.

Submitted November 26, 1984.

Decided August 30, 1985.

COPYRIGHT MATERIAL OMITTED

Gregory C. Powell, Riverdale, Md., was on brief for appellant.

Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Donald J. Allison, and Kenneth W. Cowgill, Asst. U.S. Attys., Washington, D.C., were on brief for appellee.

Before MACK and TERRY, Associate Judges, and PAIR, Associate Judge, Retired.

TERRY, Associate Judge:

Appellant was charged by indictment with assault with intent to commit robbery while armed (count one)¹ and assault with intent to kill while armed (count two).² A jury found him guilty as charged on count one, and guilty of the lesser included offense of assault with a dangerous weapon³ (count three). On appeal he advances four arguments for reversal; we reject them all and affirm both convictions.

I

One evening in December 1982, shortly after 9:00 p.m., James Cook left his house on Twenty-Second Street, S.E., near Alabama Avenue, to buy a loaf of bread and a soft drink at a nearby shopping center. He walked along Twenty-Second Street and then decided to take a shortcut through an alley. In the alley, however, he was confronted by three men walking toward him, two of whom were holding pistols at their sides. When the three men were about fifteen feet away from him, they looked at him, and one of them said, "This is it." He asked, "Like what? What is it?", to which came the response, "Like you know what it is."

As the trio came closer, Mr. Cook, who had an injured ankle, turned and tried to flee into a nearby parking lot. As he hobbled away, however, he heard two shots fired, one of which struck him in the right thigh. The attackers then ran out of the alley toward Twenty-Second Street. A man sitting in a car in the parking lot took Mr. Cook to the hospital.

By coincidence Metropolitan Police Detective Marvin Jacobs was sitting in an unmarked police car in an Exxon station at Twenty-Second Street and Alabama Avenue, S.E., where he had stopped to purchase a pack of cigarettes. His car was facing Twenty-Second Street, and he was about 100 to 150 feet away from the alley. Although it was December, his car window was open, and through it he heard the two gunshots. He immediately started his car, and as he drove out of the gas station onto Twenty-Second Street, he saw three men running out of a nearby alley. With his view unobstructed, Detective Jacobs watched the men as they ran toward a brown Oldsmobile which was parked on the street. When they got into the car, Jacobs was only twenty to thirty feet away from them.

The three suspects drove down Twenty-Second Street at a high rate of speed; Jacobs followed them closely and radioed the police dispatcher for assistance. He trailed the Oldsmobile for several blocks, stopping right behind it at a traffic light at Stanton Road and Alabama Avenue. As both cars sat waiting for the light to turn green, the siren and flashing light of a nearby police cruister attracted Jacobs' attention. The Oldsmobile lurched forward as soon as the light changed to green, and it was off again at high speed. The Oldsmobile then made a sharp left turn onto Congress Place, where a bus had completely blocked the street. The car crashed into the bus, but before it did, the two men in the front seat jumped out and ran away. Although Detective Jacobs chased one of them for a short distance, both of them managed to escape.

Appellant, who had been riding in the back seat, was not so lucky. Officer Larry McCoy had responded to the radio run and was directly behind Detective Jacobs in his police cruiser when the Oldsmobile collided with the bus. As appellant ran from the Oldsmobile, McCoy gave chase. Appellant briefly disappeared from view when he turned a corner and ran into a courtyard, but McCoy caught and arrested him a moment later when he ran back out of the courtyard.

Detective Jacobs never lost sight of the three suspects from the time they ran from the alley until the time of the crash, and no one else got into or out of the suspects' car during that time. After appellant's arrest, Detective Jacobs searched the Oldsmobile. He found various items which were not introduced into evidence, but no weapons.

About a month later, Mr. Cook was shown a photograph of a lineup and picked out appellant as one of his assailants.⁴ He also identified appellant in court as one of the gunmen.

At trial appellant did not testify and called no witnesses. Defense counsel relied instead on his ability to cross-examine the complainant and discredit his testimony. Counsel brought out that Mr. Cook had had a few beers before going to the store. He also established that Cook had testified before the grand jury that he had no money with him at the time of the shooting, whereas at trial he said that he had about a dollar. In addition, counsel tried to show that Mr. Cook had given a more detailed description of his assailants than a police officer had placed in his report.

II

Appellant first challenges the court's denial of his motion for judgment of acquittal on the first count of the indictment. He contends that the words used by Mr. Cook's assailants were insufficient to prove a specific intent to commit robbery.

An intent to commit robbery may be inferred not only from the words uttered by the suspect but also from his conduct or from the "totality of the evidence." Dowtin v. United States, 330 A.2d 749, 750 (D.C. 1975); see Singleton v. United States, 488 A.2d 1365, 1367 (D.C. 1985); Accardo v. United States, 102 U.S. App.D.C. 4, 249 F.2d 519 (1957), cert. denied, 356 U.S. 943, 78 S.Ct. 787, 2 L.Ed.2d 817 (1958). There is no requirement that a defendant announce his intent. Singleton v. United States, supra, 488 A.2d at 1367; cf. United States v. Bridges, 139 U.S.App. D.C. 259, 261, 432 F.2d 692, 694 (1970).⁵

In Singleton v. United States, supra, this court rejected a claim that the government failed to prove that the defendant intended to rob the complainant because the evidence did not establish that the defendant demanded money or announced his intent to rob. Instead, we held that the jury could infer such an intent from the complainant's testimony that the defendant was reaching for his hip pocket, where he kept his wallet, but was unable to remove the wallet because the complainant was struggling to keep him from doing so. Likewise, in Accardo v. United States, supra, the court held that the jury could reasonably infer an intent to rob from testimony that the defendant walked up to a gas station proprietor who was closing the station for the night, pulled out a gun, and told the proprietor through an open window, "Now, you go over and unlock that door. I'm coming in." As the court explained, "The witness could have been under no delusion as to the visitor's intent when, as he testified, he `looked up and into the muzzle of an automatic pistol.'" 104 U.S.App.D.C. at 4, 249 F.2d at 519.

In the case at bar, Mr. Cook surely "could have been under no delusion" when he was approached in an alley at night by three strangers, two of whom were brandishing pistols. When they confronted him saying, "This is it," he asked, "Like what? What is it," to which they responded, "Like you know what it is." Mr. Cook then attempted to escape and was shot while doing so. After the shots were fired, the assailants fled. Viewing the totality of the evidence in the light most favorable to the government, as we must, Crawford v. United States, 126 U.S.App. D.C. 156, 375 F.2d 332 (1962), we conclude that a jury could reasonably have found that the three assailants intended to rob Mr. Cook when they accosted him in the alley. We therefore hold, on the authority of Singleton and Accardo, that the court properly denied appellant's motion for judgment of acquittal.⁶

III

Appellant asserts that a remark made by the prosecutor during his opening statement was not supported by the evidence produced at trial, and that this act of alleged prosecutorial misconduct deprived him of a fair trial. We find no misconduct and no ground for reversal.

In his opening statement, the prosecutor said that the three assailants threatened Mr. Cook by saying, "You know what this is? Give it up!" The prosecutor immediately qualified his statement by adding, "Words to that effect." As it turned out, there was no evidence that the words "give it up" were spoken by any of the assailants; the evidence established only that they said, "This is it" and "You know what it is." In order to decide whether the prosecutor's misstatement requires reversal, we must first determine whether it amounted to misconduct, and if so, whether it was so prejudicial that it deprived appellant of a fair trial.

"The purpose of an opening [statement] is to give the broad outlines of the case to enable the jury to comprehend it." Government of the Virgin Islands v. Turner, 409 F.2d 102, 103 (3d Cir. 1968). But "[t]he law does not require that opening trial statements be completely supported by evidence introduced during the trial. Such a rule, rigidly enforced, would effectively eliminate opening remarks and deprive the jury of a very useful outline of the trial. . . ." Mares v. United States, 409 F.2d 1083, 1085 (10th Cir. 1968), cert. denied, 394 U.S. 963, 89 S.Ct. 1314, 22 L.Ed.2d 564 (1969), quoted in Robinson v. United States, 361 A.2d 199, 200 (D.C. 1976). In this case the prosecutor made clear that he was only paraphrasing the words of the assailants when he used the phrase "Words to that effect." He was merely summarizing the evidence as he expected it to develop, and, as we have already held, it was not unreasonable to interpret the words and conduct of the three assailants as bespeaking an intent to rob Mr. Cook.

Appellant's principal argument is the prosecutor's misstatement must have impermissibly swayed at least some of the...