United States v. Brooks

• Decision Date: 29 June 1971
• Docket Number: 24064.,No. 22607,22607
• Citation: 449 F.2d 1077,146 US App. DC 1
• Parties: UNITED STATES of America v. Freddie A. BROOKS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

146 US App. DC 1, 449 F.2d 1077 (1971)

UNITED STATES of America v. Freddie A. BROOKS, Appellant.

Nos. 22607, 24064.

United States Court of Appeals, District of Columbia Circuit.

Argued December 16, 1970.

Decided June 29, 1971.

Mr. Charles E. Yonkers, Washington, D. C., with whom Mr. John D. Conner, Washington, D. C. (both appointed by this Court) was on the brief, for appellant.

Mr. Henry F. Greene, Asst. U. S. Atty. with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and Robert A. Shuker, Asst. U. S. Attys., were on the brief, for appellee.

Before LEVENTHAL and ROBINSON, Circuit Judges, and SMITH,^* Chief Judge, U. S. District Court for the District of Montana.

LEVENTHAL, Circuit Judge:

This is an appeal from a judgment entered on convictions for first degree premeditated murder and possession of a prohibited weapon, sentencing appellant to concurrent terms of life and one-year imprisonment, respectively. We reject appellant's contention that there was insufficient evidence of premeditation. Appellant also challenges the admission of the testimony of certain identification witnesses in view of what is claimed to have been improper pretrial confrontations. This claim may have some merit, but we do not decide that issue, because for various reasons, including our conclusion that the other clear evidence of guilt established any such error as harmless, we find no basis for reversal.

I. THE FACTS

The evidence at trial disclosed that at about 9 p. m. December 18, 1967, appellant left the home of his girl friend, Patricia Robertson, at 1323 Tenth Street, N.W., Washington, D.C. saying he was going out to get some "fresh air" and to visit a friend on Sixth Street. (Tr. 268). He was wearing a maroon shirt and brown pants, and was carrying a briefcase.

A few blocks away is the Medical Associates Pharmacy, 915 Rhode Island Avenue, N.W. At about 9:15 or 9:20 p. m. Eugene Pressley, brother-in-law of the decedent Helen Pressley, entered the pharmacy building, where he was employed, and noticed a dark-complexioned man, about six feet tall, dressed in light coat, dark trousers, and sport hat, and carrying a briefcase, standing on the steps of the building. When he left the pharmacy about five minutes later, he noticed that the man was still there, and that the man had made an attempt but failed to catch a passing bus. Pressley testified that the man "resembled" appellant in size and complexion. (Tr. 91-93).

At about 9:30 p. m. James and Helen Pressley and their four-year-old son drove up and parked on Rhode Island Avenue across the street from the Pharmacy, where James was also employed as a delivery man. They got out, crossed the street, and Helen Pressley and the boy got into one of the pharmacy cars parked directly in front of the building. It was the Pressleys' custom to drive home in one of these cars. James Pressley entered the pharmacy to check out.

James Pressley did not notice anyone else near the building as he went in. Nor did another pharmacy employee, William Cornish, who moments later arrived at the building and paused to talk briefly with Mrs. Pressley and to play with her son, sitting in the car, before he entered the building.

Shortly thereafter, two young men, Barry Daniels and Stephen Nixon, driving eastward on Rhode Island Avenue, stopped their car at the corner of 9th Street. Barry Daniels, the passenger, testified that his attention was drawn to a parked car, with a lady and little boy in it, because of the movement of the lady and her screaming. He also noticed a man standing next to the car on the passenger's side. According to Daniels, the man started walking east on Rhode Island as the lady got out of the car. Stephen Nixon, the driver, testified that he noticed the woman "acting upset" and "moving up and down" in a parked car. He then noticed "something running down the street. It was a man carrying a briefcase." Thinking that the man had stolen the woman's purse, Nixon called to him to stop. When he began to run instead, Nixon and Daniels decided to pursue him in Nixon's car.

The chase of this man, later identified as appellant, is a crucial aspect of the evidence. The appendix to this opinion is a map which locates the places that will be referred to in this opinion.

The chase began with Nixon and Daniels following the man north on Ninth Street. They lost sight of him and turned left into an alley which led them behind the pharmacy.

Meanwhile, about 9:35 p. m., James Pressley and William Cornish were summoned to the entrance of the pharmacy by the screams of Pressley's son. As Pressley reached the door, he saw his wife collapsing outside, blood "gushing" from a stab wound in her neck. A fellow employee was sent to get Dr. Lynwood Rayford, who maintained offices in the building.

At this moment Dr. Rayford was walking out of the back entrance of the pharmacy, going to his car with Eddie Pressley, James' brother. As they were walking behind the pharmacy Eddie Pressley noticed a "young man walking at a terrific pace carrying a briefcase in his right hand." His attention was drawn to the man because the man was moving at a very fast pace, and brushed against a bush growing through a wire fence at the alley's edge in an effort to stay as far away as possible from Pressley and Dr. Rayford. Pressley testified that the area in back of the pharmacy was "very well lighted." He was able to see the face as well as the general build and clothing of the man.¹ He identified the man as the appellant.

Dr. Rayford remembered someone approaching him and Eddie Pressley behind the pharmacy. He testified the man had an attache case and "he seemed to be in a hurry and he seemed to want to stay as far away from us as possible." He could only describe the man as tall, thin, and dark.

As the man walked past them, Pressley observed a red car in the alley coming towards them from the same direction as that from which the man had come. The car, driven by Nixon and Daniels, passed them and turned left toward Rhode Island Avenue to the front of the pharmacy. As the car passed, Dr. Rayford heard someone inside say, "There he goes." Eddie Pressley and Dr. Rayford followed the car to the front of the pharmacy where they found Mrs. Helen Pressley. Dr. Rayford pronounced her dead at the scene.

When Daniels and Nixon arrived in their car at the front of the pharmacy, they quickly told Cornish and James Pressley they were in pursuit of a man, and Cornish and James Pressley joined in the chase on foot.

The man fled west on Rhode Island Avenue, north on Tenth Street and west on R Street. At the intersection of Eleventh and R Streets, Nixon and Daniels caught up with the man, who was still holding the briefcase. As they came alongside him, the man ran to the car and began slashing at Nixon with a knife. (Tr. 146, 166). Nixon succeeded in rolling up the window and putting the car in reverse. As he did so the man's knife fell into the car.²

The man then ran east to the intersection of R and Tenth, where he was met by James Pressley and Cornish. Pressley heard Nixon yell, "There goes the guy," and saw the man duck behind a panel truck on R Street. The man reemerged with his briefcase in his left hand and wielding a shotgun in his right. James Pressley drew the pistol he normally carried as the delivery man for the pharmacy, and fired three shots at the man. The man was able to flee, jumping over some fences on the north side of R Street. He dropped his briefcase as he ran. It was later found to contain two live .12 gauge shotgun shells.

When three shots were heard by Jobe Keyes, a resident of 1706 Tenth Street, N.W., he looked out his window and saw a man with "something long in his hand * * * which looked like a pipe or a gun" run north in an alley between Tenth and Eleventh, N.W. Moments later William Cornish saw a man "approximately 5-10 or 6 feet emerge on French Street which runs north of R and parallel to it. It appeared to Cornish as if the man was cradling some type of object because of a bulge on the back of his coat. Cornish and James Pressley ran north on Tenth Street and east on French, but lost sight of the man they were chasing.

However, shortly before 10 p. m. Linda Winston standing on the porch of a residence at Tenth and French Streets, N. W., saw a man run east on French Street with "a shotgun under his coat," and observed that he paused to look back and then entered the basement of a house on the corner of Ninth and French Streets, as two other men came down French Street "looking for him."

That house — 901 French Street, N.W. — was owned by Martha Fewell. Among her tenants during the previous two years had been appellant, whom she treated as a "godson." She testified that just before 10 p. m. on the evening of December 18, 1967, appellant entered the house wearing dark-colored jacket and pants. His clothes were torn, his hands were cut, and he wore no hat. He told her that five men had robbed him, and that he was worried about the police getting his briefcase. Before she drifted off to sleep she heard appellant make a telephone call and say, "listen and do what I tell you to * * * I been robbed."

Appellant's call was to his girl friend, Patricia Robertson, who testified he told her that he had been robbed, and asked her to bring some fresh clothing to the house on French Street. Between December 18 and December 21, appellant stayed with Miss Robertson at her house. On December 21, he left to go to Durham, North Carolina because someone had called to say his sister had died. He was arrested by FBI agents in Durham on December 30.

Late in the evening of December 18, the police recovered a knife, on which traces of human blood were found, from the floor of Steven Nixon's car. Although no fingerprints were found on the knife itself, Patricia Robertson testified that it looked like one that she had previously seen in appellant's possession. On the same night Detective Antonio Ruiz...