U.S. v. Mackin

• Decision Date: 09 December 1974
• Docket Number: 72-1949,Nos. 72-1948,s. 72-1948
• Citation: 163 U.S. App. D.C. 427,502 F.2d 429
• Parties: UNITED STATES of America v. Margaret MACKIN, a/k/a Margaret Nelson, Appellant. UNITED STATES of America v. Erana Mae GIBSON, a/k/a Erana Horton a/k/a Lorana Horton, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 429

502 F.2d 429

163 U.S.App.D.C. 427

UNITED STATES of America v. Margaret MACKIN, a/k/a Margaret Nelson, Appellant.

UNITED STATES of America v. Erana Mae GIBSON, a/k/a Erana Horton a/k/a Lorana Horton, Appellant.

Nos. 72-1948, 72-1949.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 24, 1973.

Decided July 18, 1974, Rehearing Denied Aug. 16, 1974,

Certiorari Denied Dec.9, 1974, See 95 S.Ct. 629.

Joseph Paull, Washington, D.C. (appointed by this Court) for appellants. Donald A. Kettlestrings, Washington, D.C. (appointed by this Court) also entered an appearance for appellants.

N. Richard Janis, Asst. U.S. Atty. with whom Harold H. Titus, Jr., U.S. Atty., John A. Terry and Stephen W. Grafman, Asst. U.S. Attys., were on the brief for appellee.

Before TAMM, MacKINNON and ROBB, Circuit Judges.

ROBB, Circuit Judge:

The appellants Margaret Mackin and Erana Mae Gibson were convicted by a jury of first degree premeditated murder (22 D.C.Code 2401), first degree felony murder (22 D.C.Code 2401), and robbery (22 D.C.Code 2901). The District Court sentenced each appellant to life imprisonment on each murder count and a term of three to fifteen years on the robbery count, all sentences to be served concurrently. We affirm the judgments.

I.

The crimes charged in the three counts of the indictment were the murder and robbery of Mrs. Blanche Porter. Mrs. Porter, a 74-year old widow, suffered from generalized arthritis, partial deafness, partial blindness, obesity, and loss of bladder and bowel control. She had great difficulty in moving about, getting out of bed, or standing up, and even with the aid of a walker was unable to walk more than a short distance, such as the distance from her room to the bathroom. From 1967 until her death on October 8, 1971, she lived at the Nelson Nursing Home in northwest Washington. At the time of her death Mrs. Porter was the only patient in the home, which was managed by the appellant Mackin.

Mrs. Porter's sister-in-law, Mrs. Eva Curtis of Forestville, Maryland, was the only relative of Mrs. Porter who saw her regularly. On October 7, 1971 around 7:00 P.M. Mrs. Curtis telephoned Mrs. Mackin and told her that Mrs. Porter's seventy-fifth birthday was approaching and that the next day, October 8, Mrs. Curtis was going to come in a cab and take Mrs. Porter out for a birthday luncheon. Mrs. Curtis asked Mrs. Mackin to have the old lady dressed and ready and tell her Mrs. Curtis was coming for her. Mrs. Mackin said she would do this.

About half-past seven on the morning of October 8 Mrs. Mackin called Mrs. Curtis and told her 'Mrs. Porter doesn't want you to come up today. She is going out with a friend.' Mrs. Curtis responded 'I didn't know she had any friends. Where is she going?' Mrs. Mackin replied 'I don't know. She told me to call, and she is going out with friends.' When Mrs. Curtis asked if Mrs. Porter had been told of the plan to take her out to lunch Mrs. Mackin said 'Yes,' but 'don't come up. She will not be home.' Mrs. Curtis called Mrs. Mackin again at four o'clock that afternoon and asked if Mrs. Porter was home yet. Mrs. Mackin replied 'She has not come in yet.' At nine o'clock that evening Mrs. Curtis called again to ask Mrs. Mackin if she had heard anything from Mrs. Porter. Mrs. Mackin replied 'Yes, I heard from her, and she will be home in a couple of days.'

On the morning of October 8, 1971 the police found the body of a white female floating in the Anacostia River near the Sousa Bridge in southeast Washington. The body was clothed in a black robe, a green gown, blue underclothing and black slippers, and there was one ring on the right ring finger and a Timex watch on the left wrist. The police estimated the age of the dead woman as between forty to fifty years, and this estimate was recorded in the description of the body when it was received at the morgue. From an autopsy the medical examiner concluded that the cause of death was drowning and that the body had been in the water less than twenty-four hours.

The corpse that floated in the Anacostia River on the morning of October 8 was the corpse of Mrs. Blanche Porter, but as will be seen it was not identified until November 30.

On the afternoon of October 8 Mrs. Porter's son, James D. Haveron, who lived in California, telephoned to wish his mother a happy birthday. Mrs. Mackin answered the telephone. She told Mr. Haveron 'Your mother has gone out . . . with a lady friend'. She added that the birthday cards Mr. Haveron and his family had sent had arrived and Mrs. Porter would get them when she came home.

Since it was unusual for Mrs. Porter to go anywhere, and indeed Mrs. Curtis had not seen her outside without her walker for three years, Mrs. Curtis continued to call Mrs. Mackin every two or three days. Each time when Mrs. Curtis asked if there was any news from her sister-in-law Mrs. Mackin responded that she had not heard anything. On one occasion Mrs. Mackin seemed annoyed and said 'I told you I would let you know the minute I hear anything.'

Mrs. Curtis knew that Mrs. Porter's Civil Service retirement check arrived on the first of each month, and her Social Security check on the third of each month. On November 3 when Mrs. Curtis called and was told by Mrs. Mackin that both checks had arrived but Mrs. Porter had not returned, Mrs. Curtis started crying and said 'Well, I am going to call her children and have the Missing Persons Bureau notified, because I know something has happened to her now.' Mrs. Mackin said she was going to hold the checks 'to see if she heard from Mrs. Porter.'

LeRoy Haveron, a son of James Haveron, lived in Bethesda, Maryland. On November 3, after talking with his father and his aunt, Mrs. Curtis, he reported to the District of Columbia Police that Mrs. Porter was missing. He also called the Nelson Nursing Home and asked Mrs. Mackin if she had any news of his grandmother. Mrs. Mackin said she had no news but she had heard from Mrs. Porter, and she was all right.

As a result of LeRoy Haveron's report the Washington Police interviewed Mrs. Mackin on several occasions, beginning November 4. She told the police Mrs. Porter had driven off in a dark colored automobile with a woman who was unknown to Mrs. Mackin, and a day or two later Mrs. Porter had called and said 'she would come back when she felt like it.' Mrs. Mackin said she did not know where Mrs. Porter had gone.

On November 10, in response to a call from Mrs. Curtis, James Haveron came to Washington to search for his mother. He went to the Nelson Nursing Home where Mrs. Mackin took him to Mrs. Porter's room. He noticed that Mrs. Porter's wheel chair and walker were still in the room, but there was no clue to her whereabouts. Mrs. Mackin told him Mrs. Porter's checks for the month of November had come and that she, Mrs. Mackin, had returned them to the senders with a notation 'not here'.

Before returning to California on November 13 James Haveron inquired at the morgue, describing his mother as a woman seventy-four years old. He was told there was no one answering that description at the morgue.

On the evening of November 30 Victor J. Haveron, another of Mrs. Porter's sons, and his wife Paula, went to the morgue and identified Mrs. Porter's body. On December 1 the Haverons went to the Nelson Nursing Home to pick up Mrs. Porter's insurance policy. They were met by Mrs. Mackin who found the policy for them. Without letting Mrs. Mackin know that Mrs. Porter's body had been found they asked if she was sure it was Mrs. Porter who had called her on October 8. Raising her voice Mrs. Mackin replied 'Yes, don't you think I know your mother. She lived with me for four years.'

The circumstances of Mrs. Porter's disappearance and death did not become known to the police until January 1972, when Antonia Johnson and her husband George made statements to investigating officers. We summarize their story, as recounted in their statements and repeated in testimony at the trial.

The Johnsons were narcotics addicts who, as Antonia Johnson testified, supported their habit by 'stealing, robbing, selling dope, just everything.' They were acquainted with the appellant Erana Gibson who occupied an apartment near theirs. Early in October 1971 Mrs. Gibson told the Johnsons that 'my godmother has this nursing home, and there is this old bitch that knows too much that we got to get rid of.' To carry out this project she wanted to rent the Johnsons' car for $50.00. The Johnsons did not accept Mrs. Gibson's proposal at that time.

On the night of October 7 Mrs. Gibson renewed her proposition, asking 'What about tonight, can I use the car tonight?' She explained that she 'wanted to go get the old broad' and 'drive her into the woods somewhere, and leave her, because she couldn't walk very well.' She offered to pay the Johnsons $100, which she said she would obtain from her godmother. The Johnsons accepted this proposal and the three went to the Nelson Nursing Home, George Johnson driving and Mrs. Gibson directing him.

The Johnsons and Mrs. Gibson arrived at the nursing home shortly before midnight. Mrs. Gibson went into the house, saying 'I'm going to get the old broad'. A few minutes later she and Mrs. Mackin came out with Mrs. Porter between them. They held her arms, helping her to walk, and put her in the back seat of the car, Mrs. Porter sitting in the middle with Mrs. Mackin and Mrs. Gibson on either side. Mrs. Porter said she 'felt bad', asked when she was going to 'get to the hospital' and complained that her 'arthritis was bothering her'. Mrs. Gibson told her 'Now don't worry; we will get there.'

After Mrs. Porter had been placed in the car Mrs. Gibson said 'Let's go to Maryland somewhere, where it is dark'. George Johnson then drove aimlessly for an hour or so and finally stopped the car on a dirt road under the Sousa Bridge in Washington. Mrs. Porter kept saying 'When are we going to get to the hospital? ...