United States v. Comer

• Decision Date: 05 January 1970
• Docket Number: No. 22383.,22383.
• Citation: 137 US App. DC 214,421 F.2d 1149
• Parties: UNITED STATES of America v. Charles COMER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

137 US App. DC 214, 421 F.2d 1149 (1970)

UNITED STATES of America v. Charles COMER, Appellant.

No. 22383.

United States Court of Appeals, District of Columbia Circuit.

Argued September 10, 1969.

Decided January 5, 1970.

Mr. Robert W. Coll, Washington, D. C. (appointed by this court), for appellant.

Mr. Kenneth C. Baumgartner, Sp. Asst. to U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and Roger E. Zuckerman, Asst. U. S. Atty., were on the brief, for appellee. Mr. David G. Bress, U. S. Atty. at the time the record was filed, Miss Carol Garfiel, Asst. U. S. Atty. at the time the record was filed, and Mr. John A. Terry, Asst. U. S. Atty., also entered appearances for appellee.

Before WRIGHT, McGOWAN and LEVENTHAL, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

During the early morning hours of Friday, November 10, 1967, Mrs. Sarah Comer bled to death from a stab wound in her left thigh. Appellant, her husband of 19 years, was charged with inflicting the fatal wound. A jury found him guilty of second degree murder (22 D.C.Code § 2403 (1967)), and the District Court sentenced appellant to prison for ten to 30 years.

On this appeal, appellant primarily¹ challenges the trial court's refusal to instruct the jury on manslaughter despite appellant's timely request. For the reasons set forth below, we agree that the trial court erred in not giving appellant's requested manslaughter instruction, and we reverse his conviction.

I

The decision to grant or to refuse an instruction on a lesser included offense turns on the state of the evidence. We therefore recount in some detail the evidence adduced at appellant's trial.

The Government's case against appellant was entirely circumstantial. It rested primarily upon evidence discovered in appellant's apartment and upon appellant's statements to the police on the morning of the killing. The police arrived at the Comers' first-floor apartment at about 9:30 Friday morning in response to appellant's telephone call. There they discovered the decedent lying on her back on the bedroom floor. Her body, which was cold and stiff, was partially clothed in a skirt, half-slip and underpants. The only people in the apartment were appellant and a five-year-old girl who was identified as appellant's step-granddaughter.

At trial, the police officers testified that during their investigation they searched the apartment and found blood in several places, most of it in the bedroom. Specifically, a large quantity of matted blood was on the floor of the bedroom under one side of the bed. There was another large pool of blood on the mattress cover, directly above the blood on the floor, although a bedspread had been pulled over the bed concealing the blood on the mattress cover.

A pan in the bathroom contained a pinkish liquid, and drops of blood and vomitous material were found on the commode. In a kitchen drawer the police discovered a paring knife with blood on it. And finally, a wet gray shirt with a dark patch of blood on it was found in a trash can on the back porch. Pictures introduced at trial showed the front and rear entrances to the apartment to be free of any blood.

The investigating officers further testified that the body itself had a few streaks of blood on the hands and upper torso and a small laceration on the front of the left thigh. With the exception of a few small spots, no blood was found on the underpants, half-slip and skirt which covered the decedent's wound when she was found. There were also no holes — such as would have been made by a knife — in the decedent's clothes anywhere in the vicinity of the wound.

During the course of the police investigation at the apartment Friday morning, appellant was interviewed by the officers intermittently.² At the trial, the officers testified that appellant appeared intoxicated and that initially he denied cleaning up the apartment. When the police found the bloody shirt in the trash and the pink liquid in the bathroom, however, appellant changed his story, explaining that he had used both in cleaning up the apartment. In addition, the police testified that appellant told them that the paring knife found in the kitchen had been used to cut liver the night before. One detective also testified that at several times during the interview appellant "put his hands up in front of him and stated, `I don't have to tell you here. Take me to jail.'"³ The subsequent autopsy on the decedent's body showed that the thigh wound, which was three eighths of an inch long, was eight inches deep, that the femoral artery had been severed, and that the decedent had bled to death. The coroner who conducted the autopsy testified that such a wound would bleed heavily as soon as it was inflicted; if no pressure were applied to stem the loss of blood, the victim would go into disabling shock within five to 15 minutes. Moreover, he also testified that, in his opinion, any movement would have increased the bleeding from the decedent's wound. Since the autopsy had indicated that the alcohol content of the decedent's blood was very high, the coroner's judgment was that the decedent would have been too drunk to apply the necessary pressure and walk any significant distance.

Appellant testified in his own behalf. He denied guilt and denied any knowledge of the immediate circumstances leading up to his wife's death. His story was that his wife had gone out drinking Thursday evening and that he had gone to bed early. According to his story, he awoke the next morning to find his wife dead on the floor of their bedroom. He denied cleaning up the apartment, recognizing the bloody knife, or placing a shirt in the trash.

The remainder of appellant's testimony involved facts which might suggest that the killing occurred outside the apartment or that an outsider, specifically his wife's lover, had done the killing. Appellant testified that his wife was "going with" a man named Paul Williams and that two months before her death appellant had returned home unexpectedly to discover that Williams had moved in with appellant's wife. Since that time, Williams had made periodic telephone calls to appellant's wife, several of which appellant had intercepted. On the day before Mrs. Comer's death, Williams had stopped his car in front of the Comer apartment and honked his car horn.

Appellant further testified that on the morning his wife died her pocketbook and a green box containing money were missing. In addition, he found the back door unlatched although he remembered locking it the night before.

In cross-examining appellant, the prosecutor brought out further evidence of the deteriorated relationship between appellant and his wife and pressed the appellant for details about his reaction to his wife's relationship with Paul Williams.

II

Appellant went to trial on an indictment charging him with second degree murder. At the appropriate time, he requested that the jury also be instructed on the lesser included offense of manslaughter. The Government objected to such a charge, and the trial court denied appellant's request on the ground that there was "no evidence tending to bear" on manslaughter. Rule 31(c) of the Federal Rules of Criminal Procedure provides that the "defendant may be found guilty of an offense necessarily included in the offense charged * * *." This Rule carries forward the Act of June 1, 1872, § 9, 17 Stat. 198, which was intended to aid the prosecution when its proof fell short of its expectations. Despite the original purpose of the Rule, it may be availed of, as of right, by the defense. Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1896); Belton v. United States, 127 U. S.App.D.C. 201, 206, 382 F.2d 150, 155 (1967); United States v. Markis, 2 Cir., 352 F.2d 860, 866 (1965). Thus, in an appropriate case, failure to grant an instruction on a lesser included offense requested by the defense is reversible error.

The difficulty, of course, lies in determining whether a case is "appropriate" for application of the Rule. In making this determination, two questions must be decided: First, is the relationship between the greater offense and the lesser offense such that a lesser offense charge is proper? Second, does the evidence in the specific case justify giving the lesser offense charge?

For purposes of the present case, we need not pause over the first question. Manslaughter has long been recognized as a lesser included offense within second degree murder. Stevenson v. United States, supra; Belton v. United States, supra. We therefore turn to a consideration of the evidentiary predicate necessary to support a request for a lesser included offense instruction.

The standard for determining when an instruction on a lesser included offense must be given cannot be stated with complete precision. It must balance the competing principles that, on the one hand, fact-finding in our jurisprudence is the sole province of the jury, but, on the other hand, the jury is not free to render a verdict "in flagrant disregard of all the proof." Sparf v. United States, 156 U.S. 51, 64, 15 S.Ct. 273, 278, 39 L. Ed. 343 (1895).

The Supreme Court's most recent formulation of the proper test came in Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). There the Court declared that "`in a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifies it . . . is entitled to an instruction which would permit a finding of guilt of the lesser offense.' Berra v. United States 351 U.S. 131, at 134 76 S.Ct. 685 at 688, 100 L.Ed. 1013." 380 U.S. at 349, 85 S.Ct. at 1009. (Emphasis added.) Specifically, the Court held:

"* * * A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense * * *."

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