U.S. v. Mackin

• Decision Date: 14 November 1977
• Docket Number: Nos. 75-1860,75-1861 and 76-1851,s. 75-1860
• Parties: , 2 Fed. R. Evid. Serv. 148 UNITED STATES of America v. Margaret MACKIN a/k/a Margaret Nelson, Appellant. UNITED STATES of America v. Erana Mae GIBSON, 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 958

561 F.2d 958

183 U.S.App.D.C. 65, 2 Fed. R. Evid. Serv. 148

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

UNITED STATES of America v. Erana Mae GIBSON, Appellant.

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

Nos. 75-1860, 75-1861 and 76-1851.

United States Court of Appeals, District of Columbia Circuit.

Argued April 6, 1977.

Decided July 15, 1977.

Rehearing Denied Sept. 12, 1977.

Certiorari Denied Nov. 14, 1977.

See 98 S.Ct. 490

William H. Jeffress, Jr., Washington, D.C. (Appointed by this court), was on the brief for appellant in No. 75-1860; Lawrence J. Winter, Washington, D.C., entered an appearance for appellant in No. 75-1860.

William W. Bennett, Jr., Washington, D.C. (Appointed by this court), was on the brief for appellant in Nos. 75-1861 and 76-1851.

Sallie H. Helm, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., John A. Terry and Roger Adelman, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.

Before TAMM, MacKINNON and ROBB, Circuit Judges.

Opinion for the Court filed by ROBB, Circuit Judge.

ROBB, Circuit Judge:

In 1972 a jury in the District Court found the defendants Margaret Mackin and Erana Gibson guilty of murder and robbery. They were sentenced and their convictions were affirmed. United States v. Mackin, 163 U.S.App.D.C. 427, 502 F.2d 429, cert. denied, 419 U.S. 1052, 95 S.Ct. 629, 42 L.Ed.2d 647 (1974). Some two and a half years after the trial they filed a motion for a new trial upon the ground that one of the government's key witnesses had partially recanted her testimony. The District Court denied the motion and the defendants appeal. Concluding that the recantation is neither credible nor admissible as substantive evidence we affirm.

The evidence in United States v. Mackin, supra, disclosed that the defendant Mackin ran a nursing home whose sole patient was a Mrs. Porter, an aged invalid. Mrs. Mackin wanted to be rid of Mrs. Porter, apparently to make it easier to steal Mrs. Porter's retirement and social security checks. To accomplish this result Mrs. Mackin enlisted the aid of her friend and codefendant Erana Gibson who in turn hired Antonia and George Johnson to take Mrs. Porter away in their car. For their services the Johnsons were paid $100, supplied by Mrs. Mackin. Accompanied by Mackin and Gibson the Johnsons, at midnight, drove Mrs. Porter to the Anacostia River where the helpless old lady was pushed into the water to drown. What we described as the "sordid and horrible" details of the crime were set out at length in our opinion in United States v. Mackin, 163 U.S.App.D.C. 427, 429-434, 502 F.2d 429, 431-436 (1974), cert. denied, 419 U.S. 1052, 95 S.Ct. 629, 42 L.Ed.2d 647 (1974).

At trial the Johnsons were the government's key witnesses. Each testified, among other things, that both Mrs. Gibson and Mrs. Mackin accompanied the Johnsons on the midnight ride to the Anacostia River, helped the old lady out of the car when they got there, and walked her to the river where she was drowned. Both defendants, in contrast, testified that Mrs. Gibson was the only defendant who accompanied the Johnsons and the victim.

In June 1972, shortly after the trial of Mackin and Gibson, Antonia Johnson pleaded guilty to violation of the Uniform Narcotics Act, robbery, and petty larceny and was placed on probation by the District Court. In January 1975, while still on probation, she told her probation officer and her attorney that she had committed perjury at the Mackin-Gibson trial, that the defendant Mackin was not in the car on the night of the murder. She said however that the rest of her trial testimony was true.

At the hearing on the motion for a new trial Antonia Johnson's attorney and the probation officer testified that she had told them her testimony, that Mrs. Mackin was in the car, was false. Antonia Johnson refused to testify at the hearing on the ground that her testimony might incriminate her.

George Johnson also talked with his attorney about the case, but the content of his conversation was not disclosed at the new trial hearing. He successfully invoked the attorney-client privilege with respect to the conversation and, like Antonia, he refused to testify.

On this appeal the defendants contend (1) that the District Court erred in upholding George Johnson's attorney-client privilege, (2) that the court applied the wrong standard in ruling on the motion for a new trial, and (3) that the court should have granted the motion regardless of the standard applied.

The defendants contend that George Johnson consented to the disclosure of his statements to his lawyer, and thereby waived his attorney-client privilege. Whether such a waiver occurred was a question of fact which the District Court carefully explored. Johnson's attorney, Mr. Carpenter, testified at length concerning Johnson's attitude as expressed to him or gathered by him from Johnson's conduct. On all the evidence the court concluded that Johnson had not waived his privilege and we see no reason to disturb this finding.

We turn to the merits of the defendants' motion for a new trial.

The law of this circuit is that a new trial will not be granted on the basis of newly discovered evidence unless that evidence would probably produce an acquittal upon retrial. Thompson v. United States, 88 U.S.App.D.C. 235, 236, 188 F.2d 652, 653 (1951); United States v. Gaither, 142 U.S.App.D.C. 234, 236, 440 F.2d 262, 264 (1971). Applying this standard, the District Court denied the defendants' motion for a new trial. The defendants contend however that we should apply a different test when the newly discovered evidence shows that a government witness committed perjury at trial. In that case, the defendants argue, a new trial should be granted if the newly discovered evidence might cause the jury to reach a different conclusion. This standard, known as the Larrison test, has been adopted in several circuits. See Larrison v. United States, 24 F.2d 82, 87 (7th Cir. 1928); United States v. Festa, 513 F.2d 1313, 1317 (2d Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975).

The Supreme Court has not found it necessary to decide whether the Thompson or the Larrison test is to be applied when perjury has occurred. See United States v. Johnson, 327 U.S. 106, 111, n. 5, 66 S.Ct. 464, 90 L.Ed. 562 (1946). Likewise, we need not decide in this case which standard will control, for in our judgment a new trial would not be warranted under either standard.

We examine the record in the light of the Larrison test. Under that standard a new trial will not be granted unless the "court is reasonably well satisfied that the testimony given by a material witness is false." Larrison v. United States, 24 F.2d 82, 87 (7th Cir. 1928). The District Court here expressed no opinion as to the truth or falsity of the Johnsons' trial testimony but found that the outcome would not have been affected even if Mrs. Johnson had testified that Mrs. Mackin was not present in the Johnson's car. Having carefully examined the record however we conclude that no credible evidence was produced which could satisfy a court that the Johnsons testified falsely at trial. Given this view of the record it is unnecessary to remand the case to the District Court for findings on the credibility of the Johnsons; for as the court observed in the Larrison case "it would be idle to return the record for the purpose of passing upon a motion that must be denied." Id. at 87.

We start our appraisal of the record from the premise that recantations by witnesses for the prosecution are viewed with suspicion. United States v. Vincent 491 F.2d 1326, 1332 (2d Cir.), cert. denied, 419 U.S. 880, 95 S.Ct. 144, 42 L.Ed.2d 120 (1974); Johnson v. United States, 291 F.2d 150 (8th Cir.), cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961); Newman v. United States, 238 F.2d 861 (5th Cir. 1956). Moreover, the evidence of Mrs. Johnson's recantation is hearsay and at common law would not be admissible. Donnelly v. United States, 228 U.S. 243, 273, 33 S.Ct. 449, 57 L.Ed. 820 (1913); United States v. Alexander, 139 U.S.App.D.C. 163, 430 F.2d 904 (1970). Although the defendants argue that the recantation would now be admissible as a statement...