United States v. Hawkins, 72-1573

• Decision Date: 11 June 1973
• Docket Number: 72-1602.,No. 72-1573,72-1573
• Citation: 156 US App. DC 259,480 F.2d 1151
• Parties: UNITED STATES of America, v. William E. HAWKINS, Appellant. UNITED STATES of America, v. Henry H. JONES, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

156 US App. DC 259, 480 F.2d 1151 (1973)

UNITED STATES of America, v. William E. HAWKINS, Appellant.

UNITED STATES of America, v. Henry H. JONES, Jr., Appellant.

Nos. 72-1573, 72-1602.

United States Court of Appeals, District of Columbia Circuit.

Argued April 27, 1973.

Decided June 11, 1973.

Brackley Shaw, Washington, D. C. (appointed by this court), for appellant William E. Hawkins.

John A. Shorter, Jr., Washington, D. C., with whom William A. Borders, Jr., Washington, D. C., was on the brief, for appellant Henry H. Jones, Jr.

Kevin W. Carmody, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry and Kenneth Michael Robinson, Asst. U. S. Attys., were on the brief, for appellee.

Before WRIGHT and TAMM, Circuit Judges, and DAVIES,^* Senior District Judge.

PER CURIAM:

The series of events culminating in the death of 15 year old Vernon L. Gulledge began at approximately 11:00 o'clock p. m., May 21, 1971, in a shopping center parking lot on Eastern Avenue, Washington, D.C. The appellants, 26 year old Henry H. Jones, Jr. and 21 year old William E. Hawkins, entered the shopping center intending to make a liquor purchase. Prior to entering the liquor store, Jones confronted six youths, all under 16 years of age, standing in the parking lot and, after brandishing a knife, ordered them to leave before he returned. The youths moved to an area in front of a bowling alley and one left to get his older cousin. When Jones returned he again confronted the youths, inquiring why they were still there. At this point the 18 year old cousin and his 21 year old friend arrived on the scene and a fight ensued. Jones and Hawkins lost and left the parking lot. The youths, intending to meet later at a restaurant, split up — three leaving in the cousin's car and three, including the deceased, on foot.

Meanwhile the appellants met two friends with a car and related what had happened. The friends suggested looking for the youths. The four drove down Eastern Avenue to the intersection of Oglethorpe Street where they encountered Gulledge and his two friends who were identified by appellant Jones as, "Yes, that's them." The youths started running in various directions with Gulledge, pursued by Hawkins and Jones, fleeing toward a car parked on the street. Hawkins caught Gulledge at the rear of the car and commenced beating him. Jones then approached, holding a knife, and stabbed Gulledge four times, causing his death. When Theodore Corbett, who had been standing next to the car, tried to intervene he too was stabbed in the stomach, a wound from which he recovered.

A Grand Jury indictment was returned in which Jones and Hawkins were jointly charged in Count One with first degree murder, a violation of 22 D.C.Code § 2401.¹ Jones alone was charged in the second count of assault with intent to kill while armed, a violation of 22 D.C.Code §§ 501, 3202.²

At trial neither appellant disputed the basic facts, Jones relying upon insanity as a defense, and Hawkins asserting lack of intent to commit murder. The jury rejected both defenses, finding Jones guilty of both first degree murder and assault with intent to kill while armed; Hawkins was found guilty of second degree murder, a lesser included offense, under 22 D.C.Code § 2403.

The principal issue presented on this appeal, and which we think to be dispositive of it, is whether the prosecutor's improper closing and rebuttal arguments were so highly prejudicial as to require reversal.³

Interspersed throughout the Government's closing and rebuttal arguments were the following:

CLOSING ARGUMENT

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"You can read the paper in the big cases and it always is there, isn\'t it, Sirhan Sirhan, Jack Ruby, Ammidown, Timm and Caldwell, when they were caught red-handed in front of an audience or bevies of people, they turn to insanity because that is their only hope."

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"Now, oh, he is dangerous, he is a murderer. But he is not mentally ill. Sirhan Sirhan and Jack Ruby and Ammidown, they didn\'t fool anybody, nor does he, has he?"

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". . . He is not crazy, ladies and gentlemen, or insane, you know somebody passed me in the hall a moment ago and said you\'ll never get first degree murder —

"THE COURT: Wait a minute let\'s don\'t talk about things like that.

"MR. ROBINSON: It was going to be an anology sic, Your Honor.

"THE COURT: No, you cannot make that analogy and the jury will disregard it.

"MR. ROBINSON: Mr. Robinson you might think you can\'t get first degree murder in the case like this, because it\'s what somebody might say is `a Saturday night special.\' I mean, you don\'t have a $50,000 suburban house that you live in like Mrs. Ammidown, you don\'t have a deputy chief of the city like Heidi Ann Fletcher, a police officer got shot.

"But you see, ladies and gentlemen, this is the worst kind of murder, I mean its the worst. 15 years old, he never even knew Watusi Jones. Mrs. Ammidown at least knew Mr. Ammidown, there was friction. He never even knew the man that murdered him."

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At the conclusion of the Government's closing argument both defense counsel moved for a mistrial based on the Government's comparison with the Ammidown case. This motion was denied.

REBUTTAL

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"How many policemen die a year in this country in the line of duty? How many in Washington D.C. alone? How many officer Sigmons get shot down in a bank robbery by a Mr. Timm? Do we just cover them all, these deaths, with a blanket of insanity?

"And let them all go to a nice hospital under some kind of a charade of a defense? Or do we stand up tall and we defend those men who lost their lives in the line of duty? We stand up tall. Vernon Gulledge never accepted the responsibility of a policeman to die in the

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