Simon v. United States, 22229.

• Decision Date: 02 January 1970
• Docket Number: No. 22229.,22229.
• Citation: 137 US App. DC 308,424 F.2d 796
• Parties: T. Willie SIMON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

137 US App. DC 308, 424 F.2d 796 (1970)

T. Willie SIMON, Appellant, v. UNITED STATES of America, Appellee.

No. 22229.

United States Court of Appeals District of Columbia Circuit.

Argued September 25, 1969.

Decided January 2, 1970.

Mr. Thomas Penfield Jackson, Washington, D. C. (appointed by this court) for appellant.

Mr. Philip L. Kellogg, Asst. U. S. Atty., with whom Mr. David G. Bress, U. S. Atty., at the time the brief was filed, was on the brief, for appellee. Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry, and Clarence A. Jacobson, Asst. U. S. Attys., also entered appearances for appellee.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and ROBINSON, Circuit Judge.

FAHY, Senior Circuit Judge:

Appellant was indicted for second-degree murder and was convicted of that offense. The principal question on appeal is whether the court — though not requested to do so — should have instructed the jury on involuntary manslaughter. We conclude that such an instruction was not required since the evidence did not warrant it.

The case against appellant consisted primarily of the testimony of three witnesses. It appears from their testimony that on the night of March 4-5, 1966, a number of people had gathered at Joe's Place, a restaurant located on the southwest corner of 8th and F Streets in Northeast Washington. When the restaurant closed after midnight, those who had been inside dancing and drinking beer came out onto the sidewalk. Among them was appellant and Ellaine White. She testified that as she was walking home on the south side of F Street towards 7th Street with Grover Thomas, the appellant came up beside her and pointed to three boys ahead of them almost to the corner of 7th and F Streets. He said one of them had "done something" to him and that he "was going to get him." He pulled out a gun which she knocked down with her hand, exclaiming, "don't do that." She further testified that she heard two shots, one before and one after she started running back to the restaurant.

Grover Thomas, who was accompanying Ellaine White when they were approached by appellant, testified that appellant fired a pistol at the three boys one of whom was the deceased, Gordon Dean. The boys, who were ahead of the witness and Ellaine White on F Street, broke and ran. Dean ran around the corner of F Street and the other two men ran to the north side of F Street. He also testified that when appellant pulled out his pistol Ellaine White grabbed appellant's arm but that appellant jerked her loose and, thus disengaged, fired one shot up F Street and another at an angle towards the north side of F Street.

The third witness, James Bishop, testified that he left Joe's Place after midnight and, as he was approaching the corner of 7th and F streets, on the north side of the street, he heard two shots from the direction of the restaurant across the street. He observed a crowd outside the restaurant and recognized Ellaine White. He testified that she was pulling someone's arm down in what appeared to be a scuffle, and then, after the shots, he saw the deceased Gordon Dean run around the southeast corner of 7th and F Streets and head south on 7th Street towards Acker Street, where he collapsed. The witness stayed with Gordon Dean until the police arrived. It is not disputed on appeal that one of the shots caused the death of Gordon Dean.

Appellant testified in his own behalf but denied any connection whatsoever with the events described by these witnesses. Except for his testimony, which of course gave no foundation for an instruction on involuntary manslaughter, we find none which differs from that of the three witnesses whose testimony we have outlined.

The jury was instructed on the elements of second-degree murder¹ and the lesser-included offense of voluntary manslaughter.² Whether appellant was also entitled to an involuntary manslaughter instruction, as he now claims on appeal, depends upon the existence of at least some evidence in the record fairly tending to bear upon the issue of that offense.³ Before applying this evidentiary standard to the present case we examine the elements of involuntary manslaughter.

Neither voluntary nor involuntary manslaughter is defined in our Code, which provides only for the punishment of manslaughter,⁴ in contrast with the United States Code.⁵ In the absence of a statutory definition in our Code⁶ this court has adopted the general common law definition of manslaughter,⁷ and with equal justification for relying upon the common law we distinguish voluntary manslaughter,⁸ as to which the court instructed, from involuntary manslaughter.

Evidence of reckless conduct unintentionally resulting in death may form the basis for an involuntary manslaughter instruction. The offense has been explicitly recognized by this court as long ago as the decision in Story v. United States, 57 App.D.C. 3, 16 F.2d 342, 53 A.L.R. 246 (1926).⁹See, also, Nestlerode v. United States, 74 App.D.C. 276, 122 F.2d 56 (1941).¹⁰ In Thomas v. United States, 136 U.S.App.D.C. 222, 419 F.2d 1203, the court instructed the jury that malice, a necessary element of second-degree murder, might be inferred from conduct so reckless as to manifest a depraved mind and a disregard for human life, but there was no charge on the degree of recklessness which would support the lesser included offense of involuntary manslaughter. A reversal of the second-degree murder conviction was necessitated by the court's inability to determine the extent to which the jury's finding of malice was influenced by evidence of recklessness which might only have justified an involuntary manslaughter verdict.

No such difficulties are presented in the present case since the evidence is insufficient to give rise to a reasonable doubt that appellant intended to shoot one of the young men, assuming as we must that the jury did not believe appellant's testimony entirely disassociating himself from the events about which three eye-witnesses testified.¹¹ Evidence of malice, or possibly although unlikely of sudden heat of passion, was presented to the jury by uncontroverted testimony that appellant intended to shoot one of three persons ahead of him. Absent testimony that would cast doubt upon such a clear showing of appellant's intent any recklessness which might be derived from the record relates only to the accuracy of appellant's aim.¹² This sort of recklessness, however, did not justify an involuntary manslaughter instruction.

The only other contention of appellant is that the prosecutor's reference to a missing witness in his closing argument was so prejudicial that the court was obligated to instruct the jury that the prosecutor had an opportunity to call the witness but failed to do so. The prosecutor had asked appellant, when he was on the stand, about the whereabouts of a man appellant had mentioned as one who might support his alibi. Appellant answered that he was "outside," leaving the inference that he was outside the courtroom. In a remark during closing argument ...