Smith v. United States, 7184.

• Decision Date: 21 February 1974
• Docket Number: No. 7317.,No. 7184.,7184.,7317.
• Citation: 315 A.2d 163
• Parties: Raymond L. SMITH, a/k/a Ronald M. Johnson, Appellant, v. UNITED STATES, Appellee. Walter R. JEFFRIES, a/k/a Walter T. Jeffries, a/k/a Raymond Smith, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

315 A.2d 163

Raymond L. SMITH, a/k/a Ronald M. Johnson, Appellant, v. UNITED STATES, Appellee.

Walter R. JEFFRIES, a/k/a Walter T. Jeffries, a/k/a Raymond Smith, Jr., Appellant, v. UNITED STATES, Appellee.

No. 7184.

No. 7317.

District of Columbia Court of Appeals.

Argued December 4, 1973.

Decided February 21, 1974.

Rehearing en Banc Denied in No. 7317 March 25, 1974.

David C. Niblack, Washington, D.C., appointed by this court, for appellant Raymond L. Smith.

Nicholas A. Addams, Washington, D.C., for appellant Walter R. Jeffries.

William D. Pease, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before REILLY, Chief Judge, and FICKLING and HARRIS, Associate Judges.

PICKLING, Associate Judge:

Appellants Raymond L. Smith and Walter R. Jeffries were convicted in a jury trial of assault with intent to kill while armed (D.C. Code 1973, §§ 22-501, 22-3202), assault with a dangerous weapon (D.C. Code 1973, § 22-502), and carrying a pistol without a license (D.C. Code 1973, § 22-3204). Appellants raise a number of issues: (1) prosecutorial misconduct; (2) certainty of complainant's identification; (3) denial of motions for severance; (4) refusal to allow expert testimony; and (5) failure to give missing witness instruction. We affirm.

On April 18, 1972, between 7 and 8 p. m., Leon Jackson met his girl friend, Marian Fletcher, and two other women in the vicinity of Fourteenth and T Streets, N.W. Jackson talked to Miss Fletcher for approximately five minutes; during their conversation she asked him if he had ever heard of "Cadillac" Smith. Jackson replied that he had not, and Miss Fletcher then pointed to appellant Smith and a second man, Charles "Rough House" McGill, who were standing together a short distance away. Jackson and Miss Fletcher subsequently parted company but agreed to meet later that evening. Jackson remained in that area to wait for Miss Fletcher's return.

At approximately midnight he became impatient and began looking for Miss Fletcher in order to tell her that he was returning to Annapolis.¹ Jackson came to an alley which runs between T Street and Wallach Place, parallel to Fourteenth Street, where he saw Miss Fletcher talking with another person. Jackson began walking down the alley toward Miss Fletcher, who, upon seeing Jackson, waved at him as if to tell him to go back. At the same time, Jackson saw two men walking toward him from the other end of the alley but he paid no attention to them. The men passed Jackson and then called out his name. He turned and saw that each man was holding a pistol. The shorter of the two men fired one shot which hit Jackson in his left buttock. Almost simultaneously with the first shot, the taller of the two men stepped forward; and, as Jackson fell to the pavement, the tall man fired a second shot which hit Jackson's left elbow as he raised his arm to protect himself. He saw their faces and recognized the taller of the two men as "Buddy" Jeffries, with whom he had had an altercation the preceding Saturday. The shorter man he recognized as "Cadillac" Smith, whom Miss Fletcher had pointed out earlier in the evening. The two assailants fled the scene and Miss Fletcher came over and held Jackson's head as he lay in the alley. On cross-examination at trial, counsel for appellant Jeffries elicited from both Jackson and Sergeant Carpenter of the Metropolitan Police Homicide Squad that Miss Fletcher had told Jackson after the shooting that appellants had been the ones who had shot him.

Two days later Sergeant Carpenter visited Jackson at the hospital. Jackson was shown a group of ten photographs, among which was included a photograph of each appellant.² Jackson positively identified each appellant's photograph and gave Sergeant Carpenter their corresponding nicknames.

During their conversation at the hospital, Sergeant Carpenter recalled that Jackson described appellant Jeffries as having been a Negro male, in his twenties, about 6'3" tall, weighing 150 pounds, wearing a black leather coat, black boots and gloves. Appellant Smith was described as a Negro male, in his twenties, about 5'11" tall, weighing 165 pounds, with short hair, wearing a red leather coat and a red and white "gangster" hat. Although it was not reflected in his notes, Sergeant Carpenter recalled that Jackson described appellant Jeffries as wearing a similar type of hat.

At a lineup on June 6, 1972, Jackson identified appellant Jeffries. At another lineup held on July 26, 1972, he identified appellant Smith.

Appellant Jeffries presented a defense of alibi. His mother, Connie Jeffries, testified that on April 18 appellant Jeffries returned to their home in northeast Washington sometime between 11 and 11:30 p. m., ate dinner, arid went upstairs to soak his injured foot. Mrs. Jeffries' testimony as to appellant Jeffries' whereabouts on the evening of April 18 was essentially corroborated by his girl friend, Garnetta Phillips.

Appellants' principal contention is that certain comments of the prosecuting attorney throughout the trial were so prejudicial as to require reversal.³ During either his opening, closing, or rebuttal arguments to the jury, the prosecutor stated: (1) that Marian Fletcher was "too scared to come and testify"; (2) that appellants were "killers"; (3) that they were "warriors in the night"; (4) that they were "dressed like gangsters"; (5) that appellant Jeffries was a "young buck"; (6) that a guilty verdict would be a matter of achievement and courage; and (7) that the presumption of innocence rule might not apply as much to the appellants as it might to others in less serious cases. After careful consideration of these alleged instances of prosecutorial misconduct, we hold in this case that these alleged errors do not rise to the level of substantial prejudice, which is necessary in order to reverse. Garris v. United States, D.C.App., 295 A. 2d 510 (1972); Cross v. United States, 122 U.S.App.D.C. 283, 353 F.2d 454 (1965).

To determine whether the prosecutor's misconduct caused substantial prejudice, the applicable test is:

[W]hether we can say, "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." The decisive factors are the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error. [Gaither v. United States, 134 U.S.App. D.C. 154, 172, 413 F.2d 1061, 1079 (1969) (citations omitted); Garris v. United States, supra at 512 of 295 A.2d.]

Throughout the trial the court carefully restricted the jury's consideration to the relevant issues by admonitions and correcting instructions. Midway through the trial, the court instructed the jury to ignore the term "young buck" since it was irrelevant to the case. After the prosecutor's closing argument, the trial court instructed the jury as follows:

THE COURT: Ladies and gentlemen of the jury, during the prosecution's closing remarks he made some comment as to why the lady, Miss Fletcher, was not here and that she was not here because she was scared or otherwise. She's not here and the police officer couldn't find her. We don't know what's going on in her mind or why she's not here. The fact is that she isn't and the police officer couldn't find her. Now, why she's not here is unknown and not in the record. With reference to the defendants being killers; the defendants are not charged with killing. They're charged with assault with intent to kill. So killers presupposes a fact already having happened which did not occur in this case, and of course the term was improperly applied. . . .

Immediately after the prosecutor's rebuttal argument, the court instructed the jury:

THE COURT: Ladies and gentlemen, in argument Mr. Robinson again referred to their being dressed in those kind of clothes [gangster style] and coming down the alley. The Court admonishes you that the type of clothing relating to identification has nothing to do with their guilt or innocence or nothing to do with this case.

We presume, unless the contrary appears, that the jury understood and followed the court's instructions. Hall v. United States, 84 U.S.App.D.C. 209, 211, 171 F.2d 347, 349 (1948). The jury, in addition, "must be credited with enough common sense and discrimination to enable them to evaluate properly conduct and remarks of counsel even when they of fend ordinary standards of propriety." Hall, supra at 212, 171 F.2d at 350. In the instant case there was nothing to suggest that the jury did not comprehend and respect the admonitions of the trial court.

Moreover, the question of whether the improper remarks by the prosecutor required reversal was considered by the trial judge in a motion for a new trial. On review, "[m]uch reliance should be placed upon his judgment of the matter." Hall, supra at 212, 171 F.2d at 350. As the court stated in United States v. Goodman, 110 F.2d 390, 394 (7th Cir. 1940):

It is peculiarly within the knowledge of the trial judge whether remarks of counsel during the trial tend to prejudice the cause of a party. The courtroom atmosphere, prior remarks which have provoked the...