U.S. v. DeLoach

• Decision Date: 01 March 1974
• Docket Number: No. 73-1194,73-1194
• Citation: 164 U.S. App. D.C. 116,504 F.2d 185
• Parties: UNITED STATES of America v. William L. DeLOACH, Sr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 185

504 F.2d 185

164 U.S.App.D.C. 116

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

No. 73-1194.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 11, 1974.

Decided March 1, 1974.

Thomas R. Asher, Washington, D.C. (appointed by this court), for appellant.

William D. Pease, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty. at the time the brief was filed, and John A. Terry and Stephen W. Grafman, Asst. U.S. Attys., were on the brief, for appellee. Earl J. Silbert, U.S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, WRIGHT, Circuit Judge, and WYZANSKI, ^* Senior District Judge.

J. SKELLY WRIGHT, Circuit Judge:

Appellant DeLoach and a co-defendant, Harry Jackson, were tried on an indictment charging each with the first degree murder ¹ of two individuals, Francis Harper and Brenda Willis, and with carrying an unlicensed pistol. ² The jury acquitted Jackson of all charges but convicted DeLoach of two counts of second degree murder ³ and of the weapons charge. This appeal proceeds on three theories: that the conduct of closing arguments prejudiced DeLoach's case, that the trial judge's instruction to the jury on 'aiding and abetting' was unclear, and that the judge erred in summarily denying appellant's pretrial motion challenging the jury selection system then in force in the District of Columbia.

We find that certain restrictions imposed on the closing argument of appellant's counsel were erroneous and that, in the context of this case, the errors were not harmless. Accordingly, we reverse the convictions. As for appellant's claim regarding the instruction on 'aiding and abetting,' we find no lack of clarity when the jury charge is considered as a whole. The jury selection motion was properly denied by the District Court for the motion was not timely filed. ⁴

I. THE EVIDENCE

The Government relied almost entirely on the testimony of a confessed accessory to the homicides, Stephen Davis, whose appearance was compelled under a grant of immunity pursuant to 18 U.S.C. 6002 (1970). To demonstrate the importance of his testimony, we precede it with a brief summary of the other evidence introduced by the Government.

The police found the murder victims at about 6:40 p.m., September 26, 1971, near an intersection in the Northeast section of the District of Columbia. Brenda Willis, in the front passenger seat of a parked Cadillac, had two bullet wounds in the head, fired at close range, and a third wound in her shoulder; a .38 caliber slug was later found in her sinus cavity. She never recovered consciousness and died at the scene. Francis Harper, lying in the street nearby, had five bullet wounds. Two .38 caliber slugs and one .22 caliber slug were removed from his body. The .22 slug had entered the right side of Harper's face from extremely close range. He told officers he knew who had shot him; the name he mumbled before he died sounded to an observer like 'Lloyd' or 'Floyd.' The police never found the murder weapons, nor could any fingerprints be lifted from the car. On the front seat of the Cadillac officers found a large bowl containing heroin and cocaine valued at $4,000. Narcotics paraphernalia was found in the car, and autopsies revealed drugs in the blood of both victims.

The Government put on several eyewitnesses but conceded in opening argument that none would be able to identify the defendants; none was asked to do so. While the witnesses' descriptions of persons glimpsed at the murder scene did not appear to fit DeLoach, several of the descriptions did appear to fit Stephen Davis. ⁵ Within about ten minutes of finding the victims, the police issued a radio call for a truck which several of the witnesses had observed leaving the scene. Almost immediately, responding officers stopped a nearby truck driven by Davis in which Jackson was a passenger. The two men were released after brief questioning since the truck did not precisely fit the description in the radio call. That night Harper's brother visited DeLoach, a friend of Harper, to tell him about the murders. While DeLoach professed surprise and sorrow, he kept a gun near him during the conversation. ⁶

Such would have been the case absent Davis' testimony. The day after the murders, however, Davis engaged a lawyer and made a voluntary statement to the police about the affair. He was charged with first degree murder but released on bond. On April 28, 1972 an indictment issued charging Davis, Jackson, DeLoach, and Joseph Jackson, Davis' employer, with murder, conspiracy to murder, and possession of unlicensed weapons. But on the day of trial, August 21, 1972, the Government secured dismissal of all charges against Joseph Jackson and Stephen Davis and of the conspiracy charge against all defendants. Davis was granted immunity and ordered to testify.

His testimony matched his earlier statement to the police: DeLoach had asked Davis and Jackson to drive him in the truck to Chillum, Maryland on the day of the murders. Along the way DeLoach got out to make a phone call and returned to tell his friends that the people he wished to see were not at home. A few minutes later, however, DeLoach saw a Cadillac several car lengths ahead and said, 'There is the people that I want to see.' Appellant got out of the truck and instructed Jackson to accompany him. As these two approached the Cadillac from opposite sides, Davis drove the truck around the corner. A moment later Davis heard gunshots and, at the same time, Jackson got back into the truck. Through the side mirror Davis saw DeLoach running up the street with a gun in his hand and also saw a body lying on the sidewalk. DeLoach reboarded the truck and the three drove off. DeLoach got out after several blocks, before the truck was stopped by the police, and Davis did not see him again until several months later, in court. Such was the story of the murders as told by Davis.

II. THE CONDUCT OF CLOSING ARGUMENTS

A. The Restrictions on the Argument of Appellant's Counsel

Appellant's counsel used the bulk of his closing argument to show that none of the evidence and testimony other than Davis' story incriminated DeLoach. This was necessary spadework, but it left unanswered why the jury should doubt Davis' testimony and how the murders occurred if not as Davis recounted. At the climax of his argument, counsel addressed these questions by attempting to show that Davis may have committed the murders himself. This attempt foundered in a sea of prosecution objections. To show the impact of these objections, we must resort here to rather lengthy quotations from the record.

MR. TREANOR (appellant's counsel at trial):

Without Mr. Davis, there is no evidence against Mr. DeLoach.

And, what do you think of his story? We can start with the 28th of September when Officer Fickling saw the Defendant DeLoach in his own home and didn't make an arrest.

(PROSECUTOR): Objection, your Honor. That is not in evidence. There is no evidence of that whatsoever.

THE COURT: Come to the bench.

Tr. 878-879. After much haggling at the bench, the prosecutor conceded that appellant's counsel had indeed introduced the evidence to which he had adverted. The court properly overruled the prosecutor's objection. Several moments later appellant's counsel began to argue how the murders might have occurred:

(By Mr. Treanor) * * *

This is what happened that weekend ladies and gentlemen. This is Defendant DeLoach's theory of the case * * *

So Davis stops the truck, and he gets out and goes back and gets in Harper's car. And, he has no thought in his mind of killing anybody.

(PROSECUTOR): Your Honor, I hate to object again, but there is nothing in the record to support that.

THE COURT: I sustain that. We can't get into his mind. Disregard that.

MR. TREANOR: All right.

He had been drinking. He got into the back of the vehicle. Mr. Harper was there. Miss Willis was there. They were using narcotics.

(PROSECUTOR): Your Honor, I object again. He is speculating to something that there is nothing in the record about.

MR. TREANOR: Well, we know they are in the car.

THE COURT: Where did you get this?

MR. TREANOR: May we come to the benck?

THE COURT: Come to the bench.

(At the bench.)

THE COURT: This is speculation.

MR. TREANOR: My theory of the case is that Davis went back--

THE COURT: You have to get evidence.

MR. TREANOR: He turns state evidence.

THE COURT: He may have turned state's evidence. You may have wonderful theories, but you need evidence. I have ruled against you.

MR. FOGEL (Jackson's counsel): When he is through, can we take five minutes?

THE COURT: We will see. Keep going.

(In open Court.)

THE COURT: Ladies and gentlemen, disregard that last statement of Mr. Treanor.

MR. TREANOR: There was a quarrel of some kind inside this vehicle. He said that Mr. Harper was on the driver's side and Miss Willis was on the other side. Whatever happened, the defense would argue to you that Miss Willis had in her possession the .22 (PROSECUTOR): Your Honor, I object. There is nothing to support that.

THE COURT: Come to the bench.

(At the bench.)

THE COURT: Where is there evidence that she had a 22 in her possession?

MR. TREANOR: The bullet went from right to left, which meant it was fired from the passenger's side of the car.

THE COURT: You have no evidence that she had in her possession a 22.

MR. TREANOR: Your Honor, the inference came from the fact that there were open bags on the seat, and they were selling narcotics. They would have carried weapons for their own protection.

THE COURT: I am sustaining the objection. You quit this fantasy you are getting into.

(In open court.)

THE COURT: Ladies and gentlemen, disregard that last statement.

Tr. 882-885.

Obviously flustered, appellant's counsel quickly wound up his argument by suggesting, in several sentences, that the Government had not shown DeLoach's 'motive' for the murders. Cou...