United States v. Heinlein

• Decision Date: 11 October 1973
• Docket Number: No. 23226-23228.,23226-23228.
• Parties: UNITED STATES of America v. Bernard J. HEINLEIN a/k/a Jimmy Holiday, Appellant. UNITED STATES of America v. David A. WALKER, Jr., Appellant. UNITED STATES of America v. Frank J. WALKER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

160 US App. DC 157, 490 F.2d 725 (1973)

UNITED STATES of America v. Bernard J. HEINLEIN a/k/a Jimmy Holiday, Appellant.

UNITED STATES of America v. David A. WALKER, Jr., Appellant.

UNITED STATES of America v. Frank J. WALKER, Appellant.

Nos. 23226-23228.

United States Court of Appeals, District of Columbia Circuit.

Argued December 20, 1972.

Decided October 11, 1973.

Rehearing Denied November 7, 1973.

COPYRIGHT MATERIAL OMITTED

J. Alan Galbraith, Washington, D.C., with whom Edward Bennett Williams, Washington, D.C. (both appointed by this court) was on the brief, for appellant in No. 23,226.

Bruce J. Terris, Washington, D.C. (appointed by this court) for appellant in No. 23,228 also argued for appellant in No. 23,227.

William S. Block, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and Theodore Wieseman, Asst. U. S. Attys., were on the brief, for appellee. Harold H. Titus, Jr., U. S. Atty., also entered an appearance for appellee.

Gilbert A. Cuneo and Charles E. Yonkers, Washington, D.C. (both appointed by this court) were on the brief for appellant in No. 23,227.

Stanley L. Temko, Richard B. Stewart, Russell H. Carpenter, Jr., and Ralph J. Temple, Washington, D.C., filed a brief on behalf of the American Civil Liberties Union Fund as amicus curiae, urging reversal.

Marilyn Cohen, Washington, D.C. and Frederick H. Weisberg, Brooklyn, N. Y. (both appointed by this court) also entered appearances for appellant in No. 23,228.

Before FAHY, Senior Circuit Judge, and McGOWAN and ROBINSON, Circuit Judges.

McGOWAN, Circuit Judge:

Appellants were charged with felony-murder (22 D.C. § 2401), murder in the second degree (22 D.C.Code § 2403), rape while armed (22 D.C.Code §§ 501, 3202), and rape (22 D.C.Code § 2801). They were convicted of felony-murder, and of the lesser included offense of assault with intent to commit rape while armed. When the jury was unable to agree as to punishment on the felony-murder count, the District Court sentenced appellant Heinlein to death, and both of the Walker brothers to prison sentences of twenty years to life. On the assault offense, each of the three appellants received a sentence of fifteen years to life. The death sentence for Heinlein has been invalidated by the supervening decision of the Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), with the effect that Heinlein stands before us in respect of his felony-murder conviction as one under a life sentence.¹

All of the participants in the events giving rise to these appeals appear to have lived in the nether world of chronic alcoholism, and the events themselves are of a singularly squalid nature. Because of this, as well as the difficulties of reconstructing — through the imperfect instrument of a chronic alcoholic — what happened in this instance in that confused and cloudy environment, this was obviously a difficult and distasteful case to try, both for judge and jury.

We have, accordingly, examined the record in this case with special care. We have concluded that, with the exception of what we believe to have been a misconception by the court of the law of felony-murder in its application to accomplices, appellants had a fair trial, and that no unacceptable risk of a miscarriage of justice resides in affirming Heinlein's convictions on both counts, and the convictions of the Walker brothers for assault with intent to commit rape while armed. The convictions of the latter for felony-murder are reversed.

I

Appellants chose not to testify at trial. Accordingly, the only purportedly eyewitness version of the events in question was given by Mr. James Harding, a chronic alcoholic. On the morning of April 13, 1968, so Harding testified, he and Marie McQueen, the murder victim, were released after overnight incarceration for drunkenness. After buying some wine, they met Bernard Heinlein and the Walker brothers, David and Frank, on the street. The five of them then went to an apartment occupied by the Walkers to drink the wine. Heinlein told McQueen that he wanted to have sexual relations with her, and the Walkers both voiced support of this proposal. When McQueen refused, the three appellants seized her, held her down, and began to remove her clothing. During the struggle, McQueen slapped Heinlein in the face. His response was to take a knife from his pocket and stab her, inflicting what proved to be a fatal wound. McQueen was then carried down into the basement by her assailants, and Harding last saw her lying on the floor there, apparently just barely alive.

Harding testified that he was a friend of the deceased, but that paralysis of the left side of his body prevented him from helping her during the brutal assault. Harding was arrested for drunkenness again a few hours later but made no report of the incident. Appellants were also arrested for drunkenness later that day. The body of the deceased was discovered two days later by a neighbor. One day after that, Harding made a statement to the police which implicated appellants.

Other witnesses for the Government were Detective Cannon of the Metropolitan Police Department; Special Agent Kelleher of the FBI, an expert in serology; and the Coroner, Dr. Whelton. Detective Cannon testified as to his findings when he arrived at the scene at 2:00 P.M. on April 15. The deceased was lying in a large pool of dried blood on the basement floor immediately inside the door leading from the basement to the first floor. After discovering what was apparently blood on the first six steps leading down from the first floor to the basement, and noticing blood on the banister and on the door of the first floor apartment of the Walkers, Detective Cannon obtained a search warrant for the apartment. Some three feet into the room he found blood on the linoleum, which appeared to present a drag pattern as if someone in the apartment had been dragged to the door. He also found several items of physical evidence, including a blue scarf, a bra which would fit the deceased, a green bedspread and two green sheets, a woman's slipper, and a certain amount of trash.

Special Agent Kelleher testified that he found type O human blood (the blood type of the deceased) on five of the ten items included in the trash, and also upon one of the green sheets. There was human blood on the blue scarf, but the type could not be determined.² Dr. Whelton testified that tests had established that the decedent had had sexual relations not long before her expiration.

The defense put forward at trial was an effort to demolish Harding's credibility. This was based upon asserted inconsistencies between his testimony at trial and prior statements made by him to the police, at the preliminary hearing, and to the grand jury. A witness was produced in the person of Dr. Prochazka, a psychiatric resident at St. Elizabeths, who testified that she examined Harding in October of 1967 and made a diagnosis then of chronic brain syndrome associated with alcoholic intoxication, with moderate to severe memory defect. The District Court also permitted Harding's credibility to be impeached by prior convictions consisting of 42 prior drunk convictions, a 1950 conviction of assault with intent to commit rape, two 1953 convictions for forgery and uttering, and a 1968 larceny conviction.³

II

A principal claim of error advanced on behalf of all the appellants is that Harding was not a competent witness. In particular, it is urged that the District Court erred in failing to grant appellants' motion that Harding be subjected to a psychiatric examination with respect to his competency.

The trial began on April 28, 1969.⁴ On the second day Harding completed his direct examination, and was cross-examined at great length by counsel for Heinlein. At the beginning of the third day of trial, appellants' motion was made. In support of it, it was argued that Harding had displayed confusion in his testimony on the previous day. Counsel also reported that, at the end of the preceding day, St. Elizabeths' records had been subpoenaed which indicated a medical basis for Harding's allegedly inadequate performance on the stand. It was also said that an expert examination would take into account the fact that Harding had been drinking at the time of the events described by him. The court's ruling was couched in these terms:

"THE COURT: As far as this witness is concerned, he has shown confusion and he has shown different statements at different times, primarily about matters that really don\'t go to the crux of this case, and that is as to where he went and what order immediately after this thing went on.

He may have been inexpertly questioned. We have seen from the stand that he has to be questioned very carefully; otherwise he gets the wrong impression of the question and gives an answer that might be considered at variance with another answer he has given.

But his testimony is primarily important, as I see it, to put these people at the scene of this crime, and in this he has never varied, never varied.

The jury is perfectly competent to weigh the testimony of this witness.

As a matter of fact, that is one of the two chief functions of a jury. One is to weigh the testimony of witnesses, the other of course is to decide the facts.

And the jury is perfectly competent to do this.

I have observed nothing in this man to indicate other than that he is an alcoholic, that his memory is clouded as to certain events, it doesn\'t appear to have been clouded as to others as far as putting these people at the scene of the crime. That he has never been shaken in by any statement that I know of.

I don\'t believe that the interest of justice demands such a psychiatric examination, which I don\'t believe would be the slightest help.

I think the jury in this matter is altogether competent to judge the effect of this man\'s testimony, and I will deny your motion."

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