U.S. v. Sarvis

• Decision Date: 21 November 1975
• Docket Number: 74-2033,Nos. 74-1935,s. 74-1935
• Citation: 523 F.2d 1177,173 U.S.App.D.C. 228
• Parties: UNITED STATES of America v. James L. SARVIS, Appellant. UNITED STATES of America v. Irie E. LEONARD, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1177

523 F.2d 1177

173 U.S.App.D.C. 228

UNITED STATES of America v. James L. SARVIS, Appellant.

UNITED STATES of America v. Irie E. LEONARD, Appellant.

Nos. 74-1935, 74-2033.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 11, 1975.

Decided Nov. 21, 1975.

Albert W. Overby, Jr., Washington, D. C. (appointed by this court), and John B. Dunn, Washington, D. C., for appellant in No. 74-1935.

J. Michael Farrell, Washington, D. C. (appointed by this court), for appellant in No. 74-2033.

Donald L. Abrams, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Eugene M. Propper, and Roger M. Adelman, Asst. U. S. Attys., were on the brief, for appellee. Robert P. Palmer, Asst. U. S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

Appellants James L. Sarvis and Irie E. Leonard were tried separately on charges growing out of a series of events at the apartment of one Benjamin Rudd on the night of September 15-16, 1970. Each was convicted of robbery and second degree burglary; Leonard was also convicted of first degree murder. They allege numerous errors in the proceedings below, the most substantial of which involve the constitutional right to a speedy trial and the cautionary instruction given regarding the testimony of immunized witnesses.

Their cases have been here before. They were first tried together in mid 1971, along with Francis A. Salters. In that trial Salters was acquitted, Leonard was convicted of first degree murder, armed robbery, and second degree burglary, and Sarvis was found guilty of armed robbery and second degree burglary. We reversed, finding prejudicial error in some of the instructions and in the trial court's action limiting cross-examination of one Government witness. United States v. Leonard, 161 U.S.App.D.C. 36, 494 F.2d 955 (1974). Sarvis and Leonard here appeal from the convictions resulting from their separate retrials.

We affirm.

I. Facts

Testimony at the two retrials ¹ depicted a brutal robbery and murder of Benjamin Rudd at his apartment at 854 21st Street, N. E., Washington, D. C. When Rudd arrived at his home the night of September 15, 1970, he was grabbed and pulled across the street to his apartment building by two men, identified at trial as Sarvis and Leonard. He apparently escaped their grasp temporarily and took refuge in the apartment of a neighbor, but he was later coaxed back out into the hallway of the building. There Sarvis held him while Leonard struck him, then both searched his pockets, taking his keys and wallet. All of the events in the hallway were witnessed by a number of youthful observers who had gathered on the porch of the building and who watched through a glass panel in the door. Leonard called to one of the group, Francis Salters, to use the keys and open the door to Rudd's apartment, and when he did so, appellants dragged Rudd inside. Leonard and Sarvis held Rudd in the bedroom, while at various times Salters, Albert Jones, and Curtis Hughes carried a number of Rudd's possessions out of the apartment. Others of the group on the porch declined to share in the plunder, but saw those involved carrying items out of the building.

Meanwhile, Leonard and Sarvis were with Rudd in the bedroom. Two witnesses testified that they had seen a badly beaten Rudd on the bedroom floor. Leonard stood over him brandishing a large knife obtained from the kitchen; Sarvis stood nearby holding a small woodcarving knife. Several witnesses heard Leonard say he would kill Rudd because Rudd had seen their faces. None of the witnesses actually saw the lethal blow, but Rudd's battered body was found the next day by a neighbor, and it was determined that he had died from a large knife wound.

The prosecution testimony at the two trials was substantially the same, with one exception. Since Sarvis had been acquitted of murder at the first trial, the judge labored to assure that the fact of Rudd's death did not come out at Sarvis' retrial. He did, however, permit testimony as to all events up to the death, including the scene in the bedroom, with Sarvis holding a knife near the bloodied victim.

Sarvis and Leonard presented separate alibi defenses.

II. Appellant Sarvis

A. The accomplice and immunity instruction

Jones and Hughes testified for the Government in both trials under a grant of immunity. Appellant Sarvis alleges that the cautionary instruction given to the jury concerning the testimony of immunized accomplices was inadequate and constitutes reversible error.

The testimony of accomplices has long been recognized as suspect and deserving of special treatment. See Crawford v. United States, 212 U.S. 183, 203-204, 29 S.Ct. 260, 53 L.Ed. 465 (1909); Bruton v. United States,391 U.S. 123, 136, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). It is therefore the usual practice for the court to instruct the jury that such testimony should be received with caution and scrutinized with care. United States v. Lee, 165 U.S.App.D.C. 50, 57, 506 F.2d 111, 118 (1974), Cert. denied, --- U.S. ---, 95 S.Ct. 2403, 44 L.Ed.2d 670 (1975). See Instruction 2.22, Criminal Jury Instructions for the District of Columbia (2d ed. 1972).

The immunized witness instruction is not blessed with such a long history. In fact, it traces only to our prior decision in this case, where we held that reversible error was committed when the court denied a requested instruction cautioning the jury about the testimony of immunized witnesses. United States v. Leonard, supra, 161 U.S.App.D.C. at 42, 494 F.2d at 961. We stated there that we had found no earlier case which so held, but we explored the reasons for the usual cautionary instructions concerning accomplices and paid informants, and we found that the same reasons require the giving of a requested immunity instruction. We limited our holding, however, in this fashion:

(W)e are not to be understood as saying that, on retrial, if Sarvis and Leonard request an instruction with regard to Jones and Hughes that their testimony is to be viewed with caution both because they were accomplices and because they have been granted immunity from prosecution, they will be entitled to double instructions. Rather, the district court should merge both requests into a single instruction that the testimony of Jones and Hughes is to be scrutinized with caution because they are accomplices and because they have been granted immunity.

161 U.S.App.D.C. at 42-43, 494 F.2d at 961-962.

On retrial Sarvis requested an elaborate instruction which went into detail on the reasons for receiving "with the very greatest care and caution" the testimony of accomplices and immunized witnesses. The court, instead, delivered an instruction appearing in Instruction 2.22, Criminal Jury Instructions, supra, modified to add a description of the meaning of immunity. The charge given first defined accomplice in the standard way, then described the meaning of use immunity, reminding the jury that such immunity does not protect the witness from a perjury prosecution. It specifically named two witnesses, Jones and Hughes, both as accomplices and as immunized witnesses. The charge concluded:

Testimony from an accomplice, Whether or not that accomplice is immunized, should be received with caution and scrutinized with care. You should give it such weight as in your judgment it is fairly entitled to receive.

Tr. of Instructions, Sept. 3, 1974, at 12 (emphasis added).

Sarvis correctly points out that the instruction does not conform perfectly to our directions, for it gives no straightforward indication that the testimony of Jones and Hughes deserves caution precisely "Because they have been granted immunity." The judge might indeed have done more to indicate that immunity is an independent reason for treating this testimony with care. But if there was error, we do not consider it error affecting substantial rights of the defendant. The jury's attention was clearly drawn by name to the testimony of the two witnesses who were immunized, and the jury was told to receive that testimony with caution and to scrutinize it with care. An additional clause or sentence more specifically directed to immunity would, as a practical matter, have added little. Moreover, since the testimony of Jones and Hughes was amply corroborated by other witnesses, there is even less reason to think reversal appropriate. Cf. United States v. Lee, supra, 165 U.S.App.D.C. at 59-60, 506 F.2d at 120-121.

Sarvis presses another objection against the instruction: that it failed to tell the jury the reasons for receiving an immunized witness' testimony with caution, reasons which we set forth in our earlier opinion in this case. 161 U.S.App.D.C. at 42, 494 F.2d at 961. For some types of credibility instructions it is customary to impart to the jury the explicit rationale for exercising caution in receiving the testimony. See, e. g., Instructions 2.21, 2.23, Criminal Jury Instructions, supra (testimony of children and informers). Other standard instructions refrain from spelling out the reasons. See, e. g., Instruction 2.22, Id. (testimony of accomplices). No matter which procedure might be thought appropriate in the case of immunized accomplices, we are once again convinced that the judge's failure to elaborate on the charge here did not affect substantial rights of the defendant. If there was error, it was harmless. Rule 52(a),Fed.R.Crim.P.

B. Other alleged instructional errors

Sarvis' other allegations concerning instructional errors may be treated very briefly.

1. There clearly was no error in the trial judge's failure to name Francis Salters explicitly as one of the accomplices whose testimony should be treated with care. In fact, it would have been improper to name him, since Salters had been duly acquitted of all...