United States v. Gaither, 23636.

• Decision Date: 09 April 1971
• Docket Number: No. 23636.,23636.
• Citation: 142 US App. DC 234,440 F.2d 262
• Parties: UNITED STATES of America v. Sylvester F. GAITHER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

142 US App. DC 234, 440 F.2d 262 (1971)

UNITED STATES of America v. Sylvester F. GAITHER, Appellant.

No. 23636.

United States Court of Appeals, District of Columbia Circuit.

February 12, 1971.

Petition for Rehearing Denied April 9, 1971.

Mr. Edward L. Genn, Washington, D. C. (appointed by this court) was on the brief for appellant.

Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and Brian W. Shaughnessy, Asst. U. S. Attys., were on the brief for appellee.

Before McGOWAN and LEVENTHAL, Circuit Judges, and VAN PELT^*, Senior United States District Judge for the District of Nebraska.

PER CURIAM:

Appellant was convicted by a jury of two counts of armed robbery (22 D.C. Code §§ 2901, 3202), two counts of assault with a dangerous weapon (22 D.C. Code § 502), and one count of carrying a dangerous weapon (22 D.C.Code § 3204).

On October 19, 1968, at approximately 12:30 p. m., two officers on patrol in their scout car received a radio dispatch informing them that a robbery was in progress at a nearby liquor store. The officers quickly drove to the store and, as they approached it, they observed appellant and two other men coming out of the front door. Their attention was drawn to appellant, who was wielding a pistol and carrying a large paper bag. Appellant and his two companions fled in opposite directions upon spotting the policemen. The officers went after appellant and noticed that, as he was running, he tossed the pistol and paper bag into a bush. They managed to catch appellant; and they retrieved the pistol and the paper bag, the latter containing $475 in cash. Appellant was immediately returned to the store where he was positively identified by the co-owners and by one of the customers who was present at the time of the robbery.

Appellant now raises a number of points, but we believe only a few merit extensive discussion.¹

Appellant argues that the trial judge erred in denying his motion for a new trial, made eight days after conviction, on the ground of newly-discovered evidence. At sentencing, appellant submitted two affidavits by his co-defendants,² each of which proclaimed his innocence. The trial judge held a hearing on this matter, and one of the co-defendants, upon being apprised of the penalty for perjury, refused to testify on the basis that his statement might incriminate him. The other co-defendant took the stand. He pointed out that, at the time he entered his plea of guilty, he had implicated appellant in the commission of this crime. However, he stated that he had lied at that time and that he was now suffering from pangs of conscience.

Rule 33, Fed.R.Crim.P., provides that "the court on motion of a defendant may grant a new trial to him if required in the interests of justice." When such a motion is based on newly-discovered evidence, it has been considered to be addressed to the sound discretion of the trial court. See United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562 (1946); Blackburn v. United States, 97 U.S.App.D.C. 62, 228 F.2d 33 (1955). Moreover, one of the guiding criteria by which the exercise of that discretion has been judged is the determination of whether the newly discovered evidence would lead to a different result in the case. See Thompson v. United States, 88 U.S.App.D.C. 235, 188 F.2d 652 (1951). Given the fact that appellant was practically caught in the commission of the crime, and given the strength of the identifications by the eyewitnesses, it is highly unlikely that the introduction of an exculpatory statement of this nature would change the result herein.

Appellant also argues that the trial court committed various errors in its instructions to the jury. He claims that the trial judge should not have informed the jury that they have a right to take into consideration the defendant's interest in the outcome of the case when he takes the stand. Without suggesting that the use of this instruction is a practice to be preferred, we note that it is a standard one,³ and its propriety has been upheld on several occasions in this jurisdiction. See United States v. McCleary (No. 23,142, decided June 30, 1970) (without opinion); Fisher v. United States, 80 U.S.App.D.C. 96, 98, 149 F.2d 28, 30 (1945), aff'd, 328 U. S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946).

In addition, appellant urges that the trial court misinformed the jury as to the meaning of specific intent by instructing them in the following manner:

You may infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted.

An act is done knowingly if done voluntarily and not because of mistake, inadvertence, or accident.

It is certainly true that the above is not a proper instruction on specific intent, although no objection was made to it at trial. It is also true that this court has placed great importance upon the manner in which a jury is instructed as to the elements of a crime. We have held that any omission of an element of a crime in the instructions to the jury is plain error under Rule 52(b) of the Fed.R.Crim.P. See Byrd v. United States, 119 U.S.App.D.C. 360, 342 F. 2d 939 (1965); Jackson v. United States, 121 U.S.App.D.C. 160, 348 F.2d 772 (1965). However, upon viewing the trial court's charge in its entirety, it is quite clear that the trial court did not omit an instruction on specific intent. The instruction began in the following manner:

To establish the fifth essential element of the offense, it is necessary that the property was so taken and carried away by the defendant without right to do so and with specific intent to steal it. * * * Specific intent requires more than a mere general intent to engage in certain conduct or to do certain acts.

A person who knowingly does an act which the law forbids, intending with bad purpose either to disobey or disregard the law, may be found to act with specific intent.

The above portion of the instruction, then, was a standard instruction which is often given on specific intent.⁴

Appellant's final claim is that the Government erroneously exercised unsupervised discretion in deciding whether certain of its materials...