U.S. v. Cox, 73--1571

• Decision Date: 18 December 1974
• Docket Number: No. 73--1571,73--1571
• Citation: 166 U.S.App.D.C. 57,509 F.2d 390
• Parties: UNITED STATES of America v. Albert COX, a/k/a Albert C. Smith.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 390

509 F.2d 390

166 U.S.App.D.C. 57

UNITED STATES of America v. Albert COX, a/k/a Albert C. Smith.

No. 73--1571.

United States Court of Appeals District of Columbia Circuit.

Argued June 5, 1974.

Decided Dec. 18, 1974.

Melvin Richter, Washington, D.C. (appointed by this Court), for appellant.

James M. Hanny, Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., and John A. Terry, Asst. U.S. Atty., were on the brief for appellee. Harold H. Titus, Jr., U.S. Atty. at the time the record was filed and James F. McMullin, Asst. U.S. Atty., also entered appearances for appellee.

Before FAHY, ^* Senior Circuit Judge, and TAMM and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

On this appeal from a conviction of murder in the second degree, appellant contends that the evidence is insufficient to sustain the verdict and that receipt in evidence of his statement to the police violates the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We reject these contentions, and we affirm.

I. SUFFICIENCY OF THE EVIDENCE

Appellant was convicted of the murder by shooting of Joseph Jackson, who was found dead on the evening of February 17, 1972, in appellant's apartment. According to the testimony of William E. Wilkins, various persons had gathered in the apartment in the course of that day. Wilkins was standing by the door watching Jackson and another man playing checkers when he heard appellant shout, 'I mean everybody.' Turning, Wilkins saw a gun in appellant's hand. He heard three shots fired and was hit by two of them. Appellant was subsequently arrested, as a result of Wilkins' identification, on a charge of assault with a deadly weapon.

While appellant was in the custody of the police Jackson's body was found lying on the floor of appellant's living room. He had suffered massive internal hemorrhaging due to a gunshot wound in the abdomen. The Deputy Medical Examiner for the District of Columbia testified that the time between Jackson's injury and his death was two to three hours and that the gun had not been fired at close range.

In a statement taken by homicide officers at police headquarters on the night of the incident, appellant said that he had been carrying a gun because he feared a confrontation with a group of ten or eleven people who were drinking in the hall. He stated that they attacked him in the hall as he was returning from tending the furnace, that someone took the gun from his hand, and that 'the gun went off and shot somebody' in the course of the struggle to retrieve it.

Appellant urges that the evidence presented by the prosecution is insufficient to establish that he shot Wilkins or that Jackson was fatally injured at the time Wilkins was shot. We cannot say that there is no evidence upon which a reasonable mind might fairly conclude that appellant is guilty beyond a reasonable doubt. See United States v. Lumpkin, 145 U.S.App.D.C. 162, 168, 448 F.2d 1085, 1091 (1971). The Government's evidence is largely circumstantial, but that is no bar to its sufficiency. United States v. Fench, 152 U.S.App.D.C. 325, 333, 470 F.2d 1234, 1242 (1972). Much of appellant's challenge turns on the credibility of Wilkins, the Government's chief witness. Appellant asserts Wilkins was too intoxicated at the time of the shooting and could not accurately perceive what occurred. The weight to be given to Wilkins' testimony falls within the province of the jury and will not be reviewed on appeal. Orient Mid-East Lines, Inc. v. Cooperative for American Relief Everywhere, Inc., 133 U.S.App.D.C. 307, 310, 410 F.2d 1006, 1009 (1969).

Appellant also argues that the Government failed to establish a prima facie case of second-degree murder because it presented no evidence that appellant acted with malice aforethought and not in the heat of passion. Appellant is in error in supposing that 'malice' requires the application of a subjective standard of intent to kill. Even in the absence of subjective intent to kill, 'malice' may be determined by application of an objective standard, where conduct is reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm. ¹

II. THE ADMISSIBILITY OF APPELLANT'S STATEMENTS MADE WHILE IN THE CUSTODY OF THE POLICE

Appellant challenges the receipt in evidence of his statements to the police on the night of the shooting, on the ground that he lacked the capacity at that time to make a knowing and intelligent waiver of his rights under Miranda v. Arizona, supra.

At 7:30 p.m., when appellant was first taken to the stationhouse, he was interviewed with regard to a charge of assault with a deadly weapon. At that time he was advised of his rights by Officer Pawlick, who read him the standard Form PD--47. Appellant signed the waiver on the form. In this interview appellant gave the police three .22 caliber bullets that he had in his coat pocket. An hour later, when the police became aware that a possible homicide was involved, appellant was again advised of his rights, this time by Sergeant Murray of the Homicide Unit, and he again signed the waiver on a PD--47 Form. At 9:30, in the Homicide Unit, appellant was advised of his rights for a third time, by Detective Hill, who gave him a PD--47 Form to read and sign before taking a statement.

First, appellant argues that, although he was given repeated warnings, he did not comprehend their significance because he had only a fifth-grade education. At a hearing on the admissibility of the statements the trial judge asked appellant to read the PD--47 Form aloud and to discuss his understanding of its contents. On this basis the court reasonably concluded that appellant was capable of understanding the warnings and had in fact understood them.

Appellant also urges that he lacked the capacity to make a knowing waiver because he was intoxicated at the time of the interrogation. The record supports the trial judge's finding that appellant's statements were voluntary. The three police officers who interviewed appellant testified that, although appellant had been drinking, there was no indication that he was too intoxicated to understand the warnings. No testimony was offered by appellant in support of his assertion that he was too intoxicated to grasp the significance of his waiver. ²

Indeed, appellant repeatedly testified that he understood all the warnings read to him and that he knew what his rights were. (Tr. 218--22). He testified that he made his statements because he was 'taught to tell the truth' to police officers. (Tr. 323). An avowed conscious desire to cooperate with the police is not the sort of compulsion that undermines voluntariness. Rather, it fully supports the conclusion that appellant's waiver was knowing and intelligent. We see no justification for reversing the ruling of the trial judge.

We discern no prejudicial error and affirm the judgment of the District Court. ³

Affirmed.

LEVENTHAL, Circuit Judge (concurring):

In the course of reviewing the record for the purpose of preparing the court's opinion, I came to be concerned with a problem in the trial judge's instructions to the jury on recklessness as a basis for culpability under the criminal law of homicide. These instructions were not made the subject of any objection in the trial court, or complaint in this court, and we ultimately decided that the problem is not one that is either central to the facts of this case or warrants interjection by the appellate court under the rule contemplating reversal for plain and prejudicial error. But the judicial reflection I have provided, in the course of fulfilling my responsibility as a judge to determine whether there was plain error that would warrant reversal even in the absence of objection by counsel, may be helpful to other judges faced with this recurring problem, and hence I follow my practice of attaching to the opinion I have authored for the court, a separate, concurring opinion in which I speak only for myself.

As appears from the Dixon-Thomas-Dent line of cases, cited in footnote 1 of the court's opinion, recklessness may be the basis for a determination of culpability for murder (malice) or involuntary manslaughter. The applicable...