U.S. v. Brooks

• Decision Date: 06 May 1991
• Docket Number: 90-5464,Nos. 90-5461,s. 90-5461
• Citation: 928 F.2d 1403
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eddie BROOKS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1403

928 F.2d 1403

UNITED STATES of America, Plaintiff-Appellee, v. Eddie BROOKS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. William JOHNSON, Defendant-Appellant.

Nos. 90-5461, 90-5464.

United States Court of Appeals Fourth Circuit.

Argued July 17, 1990.

Decided March 28, 1991.

As Amended May 6, 1991.

Jerome Patrick Aquino, Alexandria, Va., for defendant-appellant Brooks.

Drewry Bacon Hutcheson, Jr., Alexandria, Va., for defendant-appellant Johnson.

Cathleen Ann Tutty, Asst. U.S. Atty., argued (Henry E. Hudson, U.S. Atty., Debra S. Straus, Sp. Asst. U.S. Atty., on brief), Alexandria, Va., for plaintiff-appellee.

Before RUSSELL, WIDENER and HALL, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The defendants Eddie Brooks and William Johnson were tried under an indictment charging them with assault with intent to kill Charles R. Ford. The three--the two alleged assailants and the victim--were at the time of the assault inmates of the Lorton Correctional Institute, a penal institution of the District of Columbia, located in Lorton, Virginia, under Congressional authorization. The defendants were tried in the United States District Court for the Eastern District of Virginia. After the completion of the testimony and jury instructions, the case was submitted to the jury, which found both defendants guilty. By their appeal, Brooks and Johnson claim error in a number of trial rulings. We find none meriting reversal and accordingly affirm the convictions.

I.

One of the aggressors (Johnson) and the victim in the alleged assault (Ford) were roommates in Dorm 11 of the Annex at the Lorton Central Facility, and the other aggressor (Brooks) lived in Dorm 16 of the same Annex. Brooks was Johnson's nephew, and he had a practice of visiting his uncle in Johnson's dormitory practically every day. About 5:30 P.M. on February 19, 1989, Ford entered the Annex where Dormitory 11 was located. As he closed the door, he was waylaid and assaulted, according to his testimony, by Brooks and Johnson. Both Johnson and Brooks had knives. They began attacking Ford with their fists and knives. It seems that during the assault Johnson was behind Ford, and Brooks was confronting Ford. Both assailants stabbed Ford repeatedly, though it seems that Brooks was the more successful in injuring Ford. Ford received multiple injuries in the assault. One of these injuries was a serious, death-threatening stab to the abdomen. Others, less serious, were at various points about his chest or in his back. Ford disengaged himself from the assault, rushing out the door and to the prison infirmary where he was given emergency treatment. After this emergency treatment, he was taken promptly to the Dewitt Hospital at the facility and later to the hospital at Fort Belvoir. He remained in the latter hospital for approximately six weeks and underwent surgery on three occasions because of his injuries suffered in the assault.

An investigation of the assault began almost immediately. The first officer to interview Ford on the night of the assault was Sergeant James L. Shipley of the D.C. Department of Corrections. Sergeant Shipley saw Ford at the emergency room of the Lorton infirmary where he had rushed after the assault. When asked if he knew his assailants, Ford affirmed he did, but he did not at first name either Brooks or Johnson. Shipley explained that Ford seemed to be "very frightened, agitated and frightened" and appeared reluctant at the time to name his assailants. Ford said that he would tell the officer the names of his assailants "in two days." An hour and a half or two hours later, when Ford had been taken to the DeWitt Hospital, he did identify voluntarily Brooks as one of his assailants in a second interview by Sergeant Shipley. He also described at the time the attire which Brooks had on at the time of the assault, and the description accords with Brooks' appearance on February 19. It was some two weeks later that Ford named Johnson as the other assailant.

Sometime after the assault, Ford encountered at the hospital Charles Little, a fellow inmate at Lorton, who was at the time either visiting or being treated at the hospital. Ford and Little began a discussion, and Ford referred to his injuries at the hands of Brooks and Johnson. Little knew Brooks and Johnson well. In fact, he was said to have had a prior romantic relationship with Johnson. He told Ford he had seen Johnson and Brooks on the afternoon of February 19. He added that Johnson Other prosecution witnesses also testified. One of these witnesses was Corporal Iris Hunt, who was in charge of the infirmary on the night of February 19. She gave Ford emergency treatment. She also prepared the report on Ford's admission and condition when he came to the infirmary. At that time, Ford indicated to Officer Hunt that he had been assaulted by two or more inmates.

and Brooks told him that an assault was going to be carried out in a short time, and the two of them invited him (Little) to witness it. Little said he did not want to. He did, though, go to the television room near the Annex, where he had a clear view of the entrance to the Annex. While there, he saw Ford enter the Annex and observed him shortly thereafter emerge bleeding and clutching his side. He shortly afterwards saw Brooks leave the Annex but did not observe Johnson come out.

Brooks in his defense called two fellow inmates, who testified they had been with Brooks for some time after five o'clock the afternoon of February 19 and until time to retire that night. Defendants did not testify. The district judge submitted the case to the jury, and it returned a verdict of guilty against both defendants. The district court, referring to the Sentencing Guidelines, sentenced Brooks to 151 months on Count I, 120 months on Count II, and 22 months on Count IV, all to run concurrently beginning after completion of the sentence Brooks was currently serving. Johnson was sentenced to 240 months on Count I, 106 months on Count II, and 22 months on Count III. The sentences under Counts I and II were to run concurrently beginning after completion of the sentence Johnson was currently serving, but the sentence under Count III was to run consecutively to Counts I and II.

II.

The defendants raise as their first claim of error that the district judge improperly refused to give on request the cautionary eyewitness identification instruction, as set forth in United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972). It is their position that the giving of such instruction, on request, is an inflexible requirement where there is important identification testimony. They trace this absolute rule to two District of Columbia Circuit decisions, one of which has given its name to the so-called rule, and to two cases in our Circuit in which such rule is said to have been adopted. We are not persuaded by this reasoning. Neither the two District of Columbia decisions nor the two cases from our Circuit cited by the defendants establish in our opinion any such rule, as a careful review of these cases will demonstrate. We begin by considering the two District of Columbia Circuit decisions.

In Jones v. United States, 361 F.2d 537 (D.C.Cir.1966), the first of such cases cited by the defendants, the defendant was charged with the robbery of a Texaco service station. The identification of the defendant depended entirely on the eyewitness testimony of the night manager of the filling station. The defendant urged that he was entitled to a special instruction on the identification of this night manager's testimony, relying for authority on an earlier decision of the same court in Salley v. United States, 353 F.2d 897 (D.C.Cir.1965). The latter case was a narcotics case in which the eyewitness was a narcotics officer. The court in Salley remarked that the officer in question often was involved in as many as a hundred cases where his identification testimony was critical. "During that time he meets many people, making buys from some and not from others. The possibility of error due to mistake and the fallibility of human memory is obvious." Id. at 898-99. Quoting from Salley, the Jones court made sure to note that the earlier decision was limited to the specific facts in that type of case (a narcotics case where the identification depended on an officer's testimony first given some months after the event and after the officer had been involved in many other cases where he had testified as an identifying witness):

A requested instruction specifically bringing this defense of mistaken identity to the jury's attention in a narcotics case must be given. The trial judge was Jones, 361 F.2d at 542 (emphasis in original). The court in Jones then addressed its own facts and, in upholding the failure to give a mistaken identification instruction, it declared:

not obligated to give the charge in exactly the words requested by defense counsel.

In our present case involving an armed robbery, there is no claim whatsoever that the complaining witness' identification of the defendant was in any way complicated or discredited by any related experience as the victim of a crime of violence. Our concern of a possible error of memory on the part of an undercover narcotics agent attempting to isolate in his recollection the identity of one participant in as many as a 100 similar transactions does not stretch to the same degree of concern for the reliability of the memory of a robbery victim who has had opportunity to see the face and physical characteristics of his assailant. We, accordingly, regard the doctrine of the Salley case as addressed specifically to the question therein presented, id est, identification in multiple unrelated narcotics purchase cases.

Id.

In United States v. Telfaire, supra, the second case cited by the defendants, the District of Columbia Circuit dealt with another robbery. There, the court, though it did include an...