U.S. v. Deloach

• Decision Date: 01 June 1976
• Docket Number: No. 75--1026,75--1026
• Citation: 530 F.2d 990,174 U.S.App.D.C. 138
• Parties: UNITED STATES of America v. William L. DeLOACH, Sr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 990

530 F.2d 990

174 U.S.App.D.C. 138

UNITED STATES of America v. William L. DeLOACH, Sr., Appellant.

No. 75--1026.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 9, 1975.

Decided Dec. 30, 1975.

Rehearing Denied Feb. 9, 1976.

Certiorari Denied June 1, 1976.

See 96 S.Ct. 2232.

Morton L. Simons, Washington, D.C., with whom Barbara M. Simons, Washington, D.C. (both appointed by this court), was on the brief for appellant.

Robert P. Palmer, Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., John A. Terry, Stuart M. Gerson and William H. Collins, Jr., Asst. U.S. Attys., were on the brief for appellee.

Before TAMM, ROBINSON and MacKINNON, Circuit Judges.

Opinion for the court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

Following a jury trial on an indictment containing three counts, two of which charged first degree murder (D.C.Code § 22--2401), appellant William L. DeLoach, Sr., was found guilty on two counts of second degree murder, as lesser included offenses, and of carrying a pistol without a license (D.C. Code § 22--3204). ¹ On this appeal, DeLoach contends the evidence was insufficient to support the judgment and that the prosecutor's summation was prejudicially improper. We affirm.

I

Much of appellant's argument as to the sufficiency of the evidence is based on an argumentative view of the facts that favors his contentions to an impermissible extent. On appeal, however, it is well settled that the court is to view the evidence in the light most favorable to the jury verdict. ² The statement of facts that follow is in accord with this rule and thus deviates in material particulars from appellant's factual contentions.

Late in the afternoon on Sunday, September 26, 1971, one Stephen Davis, a truck driver employed by Joseph Jackson (Tr. 129--30), drove a stake-bodied trash truck to 5113 A Street, a four-plex apartment where Joseph's brother Harry Jackson lived (Tr. 137--38). While Davis was in the apartment, appellant DeLoach, the resident manager of the fourplex, entered and asked for a ride to Chillum (Tr. 145--47). It was agreed among them that DeLoach would be driven there (Tr. 147). Thereupon DeLoach, Davis, and Harry Jackson left the apartment and went to the Truck (Tr. 94, 96--97, 104, 106--09, 150--52). Davis drove, Jackson sat in the middle of the cab and DeLoach sat next to the door (Tr. 150). When the truck reached South Dakota Avenue and Riggs Road, Northeast, appellant got out to make a telephone call (Tr. 153). He returned shortly thereafter and stated that the people he intended to see were not in (Tr. 154). But as they started to drive away, DeLoach noticed a dark Cadillac stopped for a light ahead of them on Third Street, Northeast, and said, 'There's the people I want to see' (Tr. 154--55).

The Cadillac contained a male driver and a woman passenger (Tr. 155) who were later determined to be Francis Harper, a dealer in illicit drugs (Tr. 387), and his girl friend, Brenda Willis (Tr. 387), who was riding in the front seat as a passenger (Tr. 333--34). Beside Miss Willis, on the seat of the car in a plastic container, were cocaine and heroin having a wholesale value of $4,000 (Tr. 334--35, 337; Govt. Ex. 16a, 16b).

Davis stopped the truck at the traffic light and DeLoach and Jackson got out. DeLoach walked up to the Cadillac and began talking to the driver while Jackson went to the passenger's side of the Cadillac and stood on the sidewalk (Tr. 155--56). While this was happening, Davis pulled the truck 'around' the Cadillac Tr. 156, 159), turned right on Riggs Road, made another right turn on First Street, and then drove the truck 'up to the end of the corner' (Tr. 159--60). As he reached that area on First Street, Davis noticed the Cadillac he had first seen on Third Street 'coming around' (Tr. 159--60), so he pulled the truck over to the curbing and stopped it on First Street about a quarter of a block away from the intersection of Kennedy Street, Northeast (Tr. 161; Govt. Ex. 1). Davis stayed in the truck (Tr. 161, 164).

The distance the two vehicles travelled from the time Davis pulled the truck around the Cadillac on Third Street until he saw it 'coming around' the corner of Riggs Road onto First Street, the time that elapsed while they were moving their respective distances, and the details of the shots fired from 'in the car' all could have allowed the jury to conclude that DeLoach and Jackson had ridden in the Cadillac from where they first met it on Third Street. This is a distance of about three normal city blocks (Govt. Ex. 5A).

When the Cadillac reached a point on First Street about one-quarter of the distance from Riggs Road to Kennedy Street, the person seated in the left rear seat shot Brenda Willis in the head three times with a .38 caliber revolver (Tr. 350--67; Govt. Ex. 21); the person seated in the right rear seat shot Francis Harper once with a .22 caliber revolver (Tr. 286, 293--96; Govt. Ex. 12). These initial shots were immediately fatal to Willis, but not so to Harper, who fell out or somehow got out of the car and began running. Immediately after he abovedescribed initial shots (Tr. 27, 29--30, 35), a tall, thin man with a gun in his hand (Tr. 13, 15, 18, 28--29) got out of the Cadillac, ran to the truck and got in the cab on the passenger's side (Tr. 161). Stephen Davis later identified this man as Harry Jackson (Tr. 161, 163, 165). Meanwhile Harper appeared to fall out of the Cadillac (Tr. 11, 13) and was thereafter chased (Tr. 39--41) by a short, stocky man (Tr. 81--82), who fired twice at Harper while both men were running. The stocky man (who the evidence indicates was DeLoach, see text at 995--998 infra) was observed to have a gun in his hand at this time (Tr. 163, 206). These shots caused Harper to fall, and after he fell his pursuer walked up to Harper while he was lying face down on the ground and shot him once more with a .38 caliber hand gun (Tr. 39--41).

While this was going on, Davis, who had parked his truck about one-half block away from where the Cadillac was when the first shots were fired (Tr. 160, 161; Govt. Ex. 1), had stayed in the driver's seat. When he heard the initial shots he looked into the rear-vision mirror (Tr. 161) and saw DeLoach running up the street with a gun in his hand at about the same time that Jackson got in the cab beside him on the passenger's side of the truck (Tr. 161, 163, 165). Almost immediately thereafter, DeLoach ran up the street from the vicinity of Harper's body (Tr. 162), crossed in back of the truck (Tr. 162), and also got into the cab, taking the seat next to the door on the passenger's side (Tr. 162). Davis immediately drove the truck away at a high rate of speed (Tr. 163--64) to Madison and Missouri Avenues and 6th Street, where Davis stopped the truck and DeLoach left (Tr. 166).

Shortly thereafter at about 6:50 P.M., following receipt of a radio lookout for the truck, Officers Simpson and Pagliarulo stopped the truck several blocks away from the 3600 block on Georgia Avenue. At that time only Davis and Harry Jackson were in the truck. The officers searched the occupants and the truck, found no weapons (Tr. 307), and released the men and truck at about 7:05 P.M. because they considered the truck did not exactly fit the description of the wanted truck that they had received over the radio (Tr. 266, 303, 311).

Late that same evening, about 10:00 or 10:30 P.M. (Tr. 395), John Harper, a former amateur boxer and the brother of the slain Francis Harper, learned of his brother's death and immediately went to DeLoach's apartment, accompanied by Shirley Jackson and John Washington (Tr. 395--96). He identified himself to DeLoach as the brother of Francis Harper, whereupon DeLoach came to the door with a .32 automatic pistol in his hand (Tr. 397). John Harper then asked DeLoach if he knew his brother had been killed. DeLoach replied, 'No. I just finished arguing with him,' on the telephone (Tr. 398).

On or about October 14, 1971, DeLoach asked John W. Parker to drive him to Alderson, West Virginia so DeLoach could see his girlfriend who was imprisoned there (Tr. 426). 'Late in the evening' on Saturday, October 16, 1971 (Tr. 426--28), Parker, with his automobile, met DeLoach at Georgia and Missouri Avenues (a block or two from Missouri, Madison and 6th Street) (Tr. 427) and drove him to Alderson (Tr. 427--31). They arrived there on Sunday, October 17th, and with DeLoach's acquiescence Parker registered for them at a motel under the alias of Walter Johnson (Tr. 428, 432--33). Later that day, when they arrived at the women's prison, a prison guard recorded the license number of their car (Tr. 434, 438). Parker asked DeLoach why the guard was taking down the number and DeLoach replied that he was in some kind of trouble and that he would tell Parker about it later (Tr. 437--38).

Shortly thereafter, DeLoach was arrested by West Virginia authorities on the instant offenses (Tr. 440, 468). At the time of his arrest he had $1,608 in cash on his person (Tr. 440, 469). ³ The denominations of the currency in his possession ⁴ were consistent with those that John Harper had observed in his brother's possession on the day of the murders (Tr. 392--93, 469).

Appellant did not offer any evidence.

The principal witness for the Government was Stephen Davis, who had previously been indicted along with DeLoach, Harry Jackson and Joseph Jackson, and who testified to the foregoing facts under a grant of immunity and a promise that he would not be prosecuted. Prior to hearing his testimony the jury was completely instructed as to the circumstances of his testifying and as to the standards they should apply in evaluating his testimony. ⁵ Davis' testimony recited the essential facts of the murders and, if believed by the jury (as apparently was the case) was sufficient alone to support the conviction.

In addition there were four other eyewitnesses. Two...