U.S. v. Day

Decision Date14 February 1979
Docket Number77-2021,Nos. 77-2020,s. 77-2020
Citation192 U.S. App. D.C. 252,591 F.2d 861
Parties, 3 Fed. R. Evid. Serv. 1523 UNITED STATES of America, Appellant, v. Lawrence T. DAY. UNITED STATES of America, Appellant, v. Eric J. SHEFFEY.
CourtU.S. Court of Appeals — District of Columbia Circuit

Roger M. Adelman, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., John A. Terry and Michael W. Farrell, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant.

John E. Drury, Washington, D.C. (appointed by this court) for appellee in No. 77-2020.

John A. Shorter, Jr., Washington, D.C. (appointed by this court) for appellee in No. 77-2021.

Before ROBINSON, MacKINNON and ROBB, Circuit Judges.

Opinion for the court filed by MacKINNON, Circuit Judge.

Opinion filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge, dissenting in part.

MacKINNON, Circuit Judge:

Appellees Lawrence T. Day and Eric J. Sheffey were charged in a seventeen- count indictment which may generally be considered as involving four separate criminal enterprises. The counts in the indictment cover events that were alleged to have occurred on December 14, 15, 16, and 17, 1976.

The first crime is alleged in count 1 and charges Day, on or about December 14, 1976, with the interstate transportation of a stolen motor vehicle from Maryland to the District of Columbia. 1 The second group of crimes alleged that Day and Sheffey on December 15, 1976 used an automobile without the owner's consent 2; and committed armed robbery (counts 3-6) 3; counts 7 and 8 charge assault with a dangerous weapon. 4

The indictment next charges that on December 16, 1976 both appellees violated the Federal Firearms Act by making four sawed-off shotguns: counts 9 through 12 set forth these charges. 5 The last five counts charge offenses allegedly committed on December 17, 1976: count 13 charges appellees with first-degree murder of Gregory Williams while armed 6; count 14 charges appellees with second-degree murder of Williams while armed 7; count 15 charges appellees with unlawful possession of five sawed-off shotguns 8; and counts 16 and 17 charges Sheffey with being an accessory after the fact to first-degree (count 13) and to second-degree (count 14) murder. 9

On April 19, 1977, the district court, acting upon motions made by appellees, severed counts 1 through 8 which related to the forceful taking on the street of an automobile and a robbery the next day of a sporting goods store, from counts 9 through 17. A trial of both appellees on counts 1 through 8 was conducted in April, 1977. At the conclusion of the Government's evidence, Day entered a guilty plea to counts 1 through 5 and count 7. 10 The next day, appellee Sheffey was acquitted by the jury on all counts.

Trial of both appellees on the remaining counts of the indictment was set for November 7, 1977. By motion, the Government requested that the court admit in evidence at the trial of counts 9 to 17 "the evidence adduced at the first trial of the robbery and other related offenses." 11 On October 25, 1977, the district court ruled that evidence of "other crimes" could not be introduced at the second trial on the last nine counts. 12 By motion, the Government also requested the court to admit certain testimony of the proposed witness Kerry Mason regarding five different acts and statements that the victim of the murder, Gregory Williams, made shortly before he was killed. 13 On November 7, 1977, the court ruled that one of the five statements was admissible but that four of the five were not. 14 The Government appeals both rulings of the district court, I. e., the other crimes ruling and the rulings involving the acts and statements of the decedent. For the reasons and to the extent set forth below, we affirm the October 25 ruling with respect to defendant Sheffey, but we reverse with respect to defendant Day. In addition, for the reasons and to the extent set forth below, we partly affirm and partly reverse the ruling of November 7.


The Government seeks to use the evidence of "other crimes" adduced at the trial of counts 1 through 8 in the trial of both Day and Sheffey on the remaining counts. Thus, the first issue in the case is whether the district court erred when it ruled that the evidence of the "other crimes" charged in counts 1 through 8 was not admissible as evidence against both Day and Sheffey in the pending trial of counts 9 through 17.

A. The Evidence Adduced at the Trial of Counts 1 Through 8

On December 14, 1976, in Hyattsville, Maryland, Orlando F. Plater at about 11:30 p. m. was robbed of his 1974 Buick Electra automobile by two men with a shotgun. The Buick was a two-door green vehicle with a tan vinyl top. At the first trial involving counts 1 through 8, Plater identified appellee Day and Gregory Williams as the men who had stolen his car.

The day following the taking of the auto, on December 15 at about 5:30 p. m., an Irving's Sports Shop store in the northeastern section of Washington, D.C. was robbed by three men. Four employees and some customers were in the store. One of the employees testified that as he looked out the store window, a Buick Electra drove up and parked directly in front of the store. Three men got out of the car and entered the store, two of them brandishing shotguns. Persons in the store were robbed of their money and jewelry, and other articles including several full-length shotguns were taken from the store. Two of the victims of the robbery identified Day as one of the two men who held shotguns. Two of the victims also indicated that Williams looked like one of the robbers. The Government contended that Sheffey was the third robber, but he was not identified as such by any witness at the scene.

On December 17, 1976, at about 4:00 a. m., shortly after the murder of Williams, police officers entered a house at 2817 26th Street, N.E., in Washington D.C. Day was found asleep in a bedroom on the first floor of the house. Sheffey was found asleep in a separate bedroom on the same floor. Both men were arrested. Among the items seized in the room where Day was arrested was a shotgun taken in the robbery of Irving's Sports Shop and shotgun shells. Four or five other guns, all sawed-off, were recovered from a trunk on the rear porch of the house. The Green Buick Electra owned by Mr. Plater was parked around the corner from the house. The keys to the car were found in the room where Day was arrested. Returning to the premises with a search warrant, police officers recovered a ring and wristwatch taken from one of the individuals in the robbery of Irving's Sport Shop on December 15. The watch was found on the top of a dresser in the room where Sheffey was arrested. During the search, one of the women living in the house turned over a ring, stating that Day had given it to her. Hacksaws and hacksaw blades were found in a closet in the bedroom where Day was arrested; a bag located immediately outside the house with sawed-off portions of the shot-gun stocks and barrels was also found. One of the sawed-off shotguns recovered from the trunk on the back porch had a latent finger print on it which matched Sheffey's right middle finger.

At trial, Tammi Thompkins, a friend of Sheffey, testified as a Government witness that she had a conversation with Sheffey on December 20, 1976 about some shotguns. She said that Sheffey told her he obtained the guns in a robbery of a gun shop about four or five days before. According to Miss Thompkins, Sheffey told her that he drove the car in the robbery.

At the conclusion of the Government's evidence, Day moved for judgment of acquittal, which was granted as to counts 6 and 8 but denied as to the remaining counts. Day then withdrew his not-guilty plea and pled guilty to counts 1 through 5 and count 7.

Sheffey presented a factual defense to the charges against him. He denied participating in the robbery in any way. He testified that he was a close, personal friend of Sheila Thomas, one of the residents of the house, and that he spent an average of three nights a week there. He testified that he was introduced to Day by one of Thomas' roommates, who introduced Day as her boyfriend. At the time of the robbery, Sheffey testified that he was at Thomas' home; she corroborated this testimony. He further testified that late in the evening of the robbery, Day and a person he introduced to Sheffey as "Slick" came to the Thomas residence in a white Nova automobile; "Slick," who turned out to be Williams, showed Sheffey two guns in the trunk of the car; Sheffey handled the guns, looked at them, and gave them back to Williams. Sheffey testified that he did not know any guns were in the house until he learned that the police had seized some at the time of his arrest. Sheffey testified that he knew nothing about the watch on the dresser in his room. He also stated that he had a conversation with Tammi Thompkins on December 20, 1976 at the D.C. Jail, but he denied that he told her he participated in the robbery at Irving's Sports Shop.

The jury acquitted Sheffey of all charges.

B. The Admissibility of "Other Crimes" Evidence With Respect to Defendant Sheffey

The first trial, as noted above, involved counts 1 through 8 of the indictment. Only five of the counts were given to the jury, and the jury rendered a judgment of acquittal for Sheffey on all of the counts. The Government seeks to have the evidence supporting the counts considered in the first trial admitted against Sheffey in the second trial. The district court concluded that admission of evidence against Sheffey of such other crimes "would be most high(ly) prejudicial against him." 15 Accordingly, the district court ruled that such evidence was inadmissible against Sheffey, and we affirm that result to the extent hereinafter set...

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