U.S. v. Clayborne

Citation509 F.2d 473,166 U.S.App.D.C. 140
Decision Date16 December 1974
Docket Number72--2192,Nos. 72--2152,s. 72--2152
PartiesUNITED STATES of America v. James CLAYBORNE, Appellant. UNITED STATES of America v. William E. BROWN, Jr., Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Sherwood B. Smith, Jr., Washington, D.C., with whom Paul M. Vincent, Washington, D.C. (both appointed by this court), was on the brief, for appellant in No. 72--2152.

Fred Martin, law student, * for appellant in No. 75--2192. John G. Murphy, Jr., Washington, D.C., with whom Sherman L. Cohn, Washington, D.C. (appointed by this court), and Patricia A. Seitz, * law student, were on the brief for appellant in No. 72--2192.

Richard L. Beizer, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty., John A. Terry and Brian W. Shaughnessy, Asst. U.S. Attys., were on the brief for appellee. Stephen W. Grafman, Asst. U.S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, and McGOWAN and MacKINNON, Circuit judges.

MacKINNON, Circuit Judge:

James Clayborne and William E. Brown, Jr. were charged with (1) first degree felony murder, 1 (2) first degree premeditated murder, 2 (3) attempted robbery while armed 3 and (4) attempted robbery. 4 In addition, Clayborne was charged with carrying a pistol without a license. 5 After a jury trial both appellants were convicted of second degree murder 6 as a lesser included offense of first degree premeditated murder. 7 Clayborne was also found guilty of carrying a pistol without a license. 8 Clayborne was sentenced to concurrent terms of imprisonment of 15 to 45 years for the murder and one year for carrying the pistol. Following a Youth Corrections Act 9 report on Brown, he was sentenced under section 5010(c) of that Act 10 to a period of commitment not to exceed 10 years. The appeals of both men have been consolidated for all purposes. We affirm.

I

As we must, we set forth the facts most favorable to the jury's verdict. Connie Jackson, a 15-year-old girl at the time, was at her home when James Clayborne and William Brown arrived there a little after 1 P.M. on May 12, 1971 (Tr. 234). Clayborne was carrying two plastic bags, one containing a number of watches and the other containing two guns. He showed Connie the bags and attempted to sell some of the watches to her and to her friend Freddy Hooks (Tr. 171--172). He also showed Freddy two pistols from the other bag and attempted to sell them to him (Tr. 172--173). While appellants were at the Jackson home an insurance man (Leonard Spiro) came to see Connie's mother, Mrs. Jackson (Tr. 175, 176--178). When he found that Mrs. Jackson was not there the insurance man left. Clayborne and Brown then talked between themselves (Tr. 177) and 'left right behind' the insurance man--'a few minutes' (Tr. 177) after his departure. Connie then went and looked out the window in the direction Clayborne and Brown had gone (Tr. 178). Connie testified that before they left Clayborne had 'two bags in his hand' (Tr. 177). When Clayborne and Brown went outside the house 'the insurance man (was) out there' (Tr. 177) and Connie stated that she saw Clayborne and the insurance man fighting (Tr. 178, 180). At that time Brown, not Clayborne, was carrying the two bags and he (Brown) was 'down the street . . . 25 feet' (Tr. 178, 179) from the point where Clayborne and the insurance man were fighting. Clayborne had approached the insurance man and later chased him with a gun in his hand (Tr. 180--181). Thus, while Brown was standing by holding the bags, Clayborne chased the insurance man, shot him once in the eye and then ran away (Tr. 181--183). After the shooting Brown ran down the parking lot to his home (Tr. 184--185). The insurance man died as a result of the shot fired by Clayborne.

The foregoing facts present adequate evidence of Clayborne's guilt and raise a question for the jury as to whether Brown, in his conversation with Clayborne before the shooting, by his actions Appellants request that we reverse these convictions principally on the claim of inadequate assistance of defense counsel because of the refusal of counsel for both appellants, on tactical and other grounds, 13 to cross-examine Connie, the Government's principal witness.

in taking the two bags of valuables, holding them while Clayborne accosted the insurance man and standing by during the fighting and shooting, and by his flight following the shooting, indicated his participation in the crime and aided and abetted Clayborne in the commission of the offense. The entire evidence was such that it was permissible for the jury to conclude that Brown had aided and abetted the offense, that the two men were acting in concert and conniving 11 concerning the offense immediately prior to their pursuit of the victim. This conclusion is supported by testimony that Brown and Clayborne had been seen standing together restlessly throughout the morning of the day in question (Tr. 232--234), and that Brown took the two bags, which Clayborne had previously carried, as soon as they left the Jackson house and held the bags while the assault on the insurance man by Clayborne was in progress. During this time Brown was also standing nearby, sufficiently close that he could have helped Clayborne in the fight had his assistance been necessary. Brown's presence was also consistent with a conclusion that he was acting as a lookout, and his holding of the bags could be interpreted as aiding and abetting 12 Clayborne in the shooting since Clayborne would have found it difficult, if not impossible, to chase, fight and shoot the insurance man if he had been required at the same time to carry two bags containing watches and guns.

II

Since appellants' major arguments in support of the claim that they were denied the effective assistance of counsel are so well set forth in Judge Bazelon's dissenting opinion, drafted prior to this opinion, the following discussion will be addressed principally to the main points referred to in the dissent.

The dissent points first to the claimed defects in Connie's testimony, to her youth, 14 to some of the vacillation in her testimony, to some contradictions, to her unwillingness to testify and to her fear of reprisals for her testimony. This characterization of her attitude and performance is accurate, but these factors were apparent to the jury, they went to the issue of her credibility, and the jury was the proper tribunal to weigh and consider them.

Next the dissent points out that defense counsel had not interviewed Connie, that Connie originally refused to testify on grounds of alleged self-incrimination (Tr. 128), that a lawyer outside the case was appointed to counsel her on this point and that he informed the court that her refusal to testify was due to fear of reprisal. This intimidation came, not from the lawyers, but apparently from the defendants (Tr. 200) and members of the community in which all parties lived (Tr. 202). The trial judge observed intimidation of Connie in open court by appellants, especially Brown, and he pointed it out to defense counsel. Since it was apparent to the judge he also considered that it was apparent to The next day she agreed to testify. As the dissent points out, following an interview of the witness, defense counsel raised questions as to whether she felt compelled to testify in conformance with her original statement to the police or with her grand jury testimony, which varied in one or two particulars. The argument on this point see-sawed back and forth between respective counsel until the court finally and properly resolved the situation by advising Connie in open court: 'The testimony you give in answer to the questions being put to you is to be the truth and only the truth. . . . (G)ive the truth as best you can recollect it' (Tr. 168). She then went on to testify, but because they considered it to be in the best interests of their clients, all defense counsel refused to cross-examine her for the reasons subsequently set forth in a statement filed with the court after the trial. See Appendix A. We find these reasons adequate to support their decisions. In fact, reasons numbered 4 and 5 would each alone have been adequate to support such decisions. These explanations point to the fact that had Connie testified further, there was a strong likelihood she would have testified to additional facts that would have supplied factual elements from which the jury might have found both appellants guilty of first degree felony murder or premeditated murder as well as armed robbery and robbery. 15

the jury. When Connie persisted in her refusal to testify she was cautioned by the judge of the likelihood of being charged with prejury and was then adjudged to be in civil contempt and ordered to jail. That order was subsequently remanded and she was placed in protective custody for the night with her mother at a place remote from their usual habitation. However, she was again warned that she would be jailed the next day if she persisted in her refusal to testify.

III

The dissent argues that practically all the reasons given by counsel for not cross-examining Connie were attributable to a failure to interview the witness or do adequate research. This is pure speculation. Moreover, it is incorrect to imply that the defense did not have adequate knowledge of the facts. Connie was a reluctant witness and no law compelled her to submit to an interview. But she was the girl friend of Clayborne's brother and he wrote to 'her repeatedly with regard to her testimony which he knew of about the case' (Tr. 150). Moreover, Connie personally visited Clayborne in jail (Tr. 150, 381, 438A). Clayborne testified that Connie '(came) to visit (him) . . . over at the jail . . . about nine or ten (times and that he) did . . . discuss the case with Connie Jackson over at the jail' (Tr. 381). He knew she was going to be a witness (Tr. 384)....

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