U.S. v. Alston
| Decision Date | 27 August 1976 |
| Docket Number | No. 75-1758,75-1758 |
| Citation | 179 U.S.App.D.C. 129,551 F.2d 315 |
| Parties | UNITED STATES of America v. Linwood L. ALSTON, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Edward Szukelewicz, Washington, D. C. (appointed by this Court), for appellant.
Andrea L. Harnett, Asst. U. S. Atty., Washington D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Garey G. Stark and Edward C. McGuire, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.
Before BAZELON, Chief Judge, ROBINSON, Circuit Judge, and JUSTICE, * United
States District Judge for the Eastern District of Texas.
Opinion for the Court filed by Chief Judge BAZELON.
Appellant was convicted, by a jury, of two counts of armed robbery 1 and sentenced to concurrent terms of imprisonment of two to six years on each count. The charges stemmed from the 1972 robbery of a George Washington University parking lot, and its two attendants, by two men. The Government's case against appellant 2 consisted only of the victims' identifications of him as being the shorter, gun-wielding assailant. 3 Appellant's defense was alibi his claim, corroborated by his witness, was that on the evening of the robbery he was watching television with his girl friend at her sister's apartment. 4
We deal here with asserted errors in the trial court's instructions relating to the burden of proof with respect to this alibi defense and its charge on the Government's burden to prove each element of the offense beyond a reasonable doubt. Because these points are raised for the first time on appeal, 5 we must determine whether the alleged defects amount to plain error, 6 "after considering their combined effect on the 'jury's factfinding function.' " 7 Unfortunately, there is no simple method for making such determination: "(a)ssessing prejudice is an elusive task, requiring appellate judges to weigh the impact of trial defects on the minds of other people, not their own." 8 But to hold harmless an erroneous burden of proof instruction, we "must be able to declare a belief that it was harmless beyond a reasonable doubt." 9 This we are unable to do.
(a) The court instructed the jury on alibi as follows:
Mr. Alston himself and his witnesses have introduced evidence that he was not in the 900 block of New Hampshire Avenue at or about the time this offense was committed. This is an alibi. It is a perfectly legitimate claim in defense of an indictment.
Again, he cannot be convicted of this offense if he was not at the place at the time the offense took place, and you have to analyze the testimony presented by him and his witnesses in contradistinction to the testimony presented by the Government, principally through the complaining witnesses, Metzger and Leiby. Tr. 265 (emphasis supplied).
Appellant argues that this instruction suggests that appellant "had to overcome the testimony of the Government witnesses" 10 and that "after the Government made its case the burden of proof had shifted to (appellant)." 11
(b) The charge on the presumption of innocence, appellant maintains, did not adequately emphasize that the burden of proof does not shift when a defendant voluntarily undertakes to present a specific defense, and did not remove the misconception that might have been engendered by the assertedly improper alibi instruction. The charge relating to the presumption of innocence was:
The Government has the burden of proving the guilt of Mr. Alston and has this burden of proving his guilt beyond a reasonable doubt.
He is presumed to be innocent unless and until evidence convinces you beyond a reasonable doubt of his guilt.
He does not have to prove his innocence as (defense counsel) said to you and as I think I said to you at the outset. And he does not have to give any testimony in defense of this action. He is permitted to, because all of us are, but he is not required. The Government has to prove he is guilty, guilty beyond a reasonable doubt. Tr. 276-276.
(c) Appellant also challenges the propriety of the instruction on the elements of robbery and armed robbery, in that the court told the jury that the Government must prove each element, but did not specifically tell them that the Government must prove each "beyond a reasonable doubt." The jury was told:
Now, since we are talking about the same robbery and the elements of robbery are the same, the only distinction being whether or not the evidence indicates the perpetrator was armed with a dangerous weapon, let me tell you about the five essential elements of the offense of robbery, each of which the Government has to prove in order to convict a person of that offense.
First of all, the Government has got to prove that Mr. Alston took some property of some value from the complainant. As I say, in the first count of the indictment, the complainant is Mr. Metzger. In the fourth count of the indictment, it is Mr. Leiby.
That he took the property against the will of Metzger and Leiby.
Secondly, that he took possession of the property by force or violence, whether it was against resistance or by putting Leiby and Metzger in fear.
Thirdly, the Government has got to prove beyond a reasonable doubt that the property was taken from the person of either Metzger or Leiby or from the immediate area in which they had control over the property.
Fourthly, the Government has got to prove that after the property was taken by force and violence against the will of the complainants, that it was carried away from the place from which it was taken.
And, lastly, the property must be taken in a robbery with the specific intent to steal it. Tr. 268-269 (emphasis supplied).
Appellant contends that because the jury was expressly advised only that the Government must prove beyond a reasonable doubt the "taking" element, the "jury very easily could have inferred, under the circumstances, that it was unnecessary to prove the other elements of the offense(s) . . . beyond a reasonable doubt." 12
(d) Finally, adding to the potential for confusion over the proper allocation of the burden of proof, is the instruction given at the start of the trial: "(t)he Government in this case has the initial responsibility of proving beyond a reasonable doubt from its evidence the identity of the perpetrator of this robbery as well as proving beyond a reasonable doubt that a robbery did occur." 13
A comparison of the court's alibi and presumption of innocence instructions with the parallel D. C. "redbook" 14 and Devitt & Blackmar 15 instructions, demonstrates that in each instance the district judge omitted or modified a crucial sentence, included in the standard instructions, that would have made clear that the burden of persuasion never shifted. Although the district court properly reminded the jury on several occasions of the Government's burden of proof, 16 we are unwilling to presume that the ambiguity created by the incomplete alibi and presumption of innocence charges and the preliminary instruction on the Government's "initial responsibility" was thus dissipated. 17 Nor will we presume that because the court specifically charged that the Government must establish appellant's presence at the scene of the robbery beyond a reasonable doubt, the jury fully understood the interplay between the "identification" and "alibi" instructions. "A defendant is entitled to specific instructions on the burden of proof on alibi issues because the jury is likely to become confused about the burden of proof when an appellant offers this type of evidence." 18 We think that the instructions here lacked the necessary specificity, and are not convinced that the jurors fully appreciated that appellant's alibi evidence need only raise a reasonable doubt in their minds that the defendant was present at the crime scene 19; that they must consider the evidence in its totality, including the alibi evidence, in deciding defendant's guilt 20; and that the burden of proof never shifts. 21
The court's failure to include in its charge on the essential elements of the offenses of robbery and armed robbery 22 the admonition, included in the standard instruction, that each must be proved beyond a reasonable doubt is but another factor that has weighed into our determination here. We need not decide whether it alone would constitute reversible error. 23
Against the potential of these instructions for confusion, we examine the strength of the evidence of guilt. 24 As noted above, the Government's case rested solely on the victims' identification testimony. Appellant relied on an alibi. Credibility was therefore crucial; 25 the case went to the jury essentially as the victims' word against appellant's. 26 Under such circumstances, we cannot say, beyond a reasonable doubt, that the jury was not swayed by the combined effect of the instructions suggesting that appellant might have assumed the burden of proof by volunteering an alibi.
The fundamental principle that serious doubts as to whether a defendant was prejudiced by trial defects should be resolved in the defendant's favor 27 compels reversal here. It may be argued that we should overlook minor variations from standard instructions because jurors do not pay much attention to instructions anyway. Counsel's failure to object, the argument runs, further supports this view.
It would be to abdicate our responsibility to ensure the fair administration of criminal justice to conjecture that jurors do not heed instructions, or to find error nonprejudicial solely because of counsel's silence. 28 An instruction central to the determination of guilt or innocence 29 may be fatally tainted by even a minor variation which tends to create ambiguity. In such circumstances, the record must provide more assurance that defendant has suffered no harm than is present here. "A conviction ought not to rest on an equivocal direction to the...
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