United States v. Johnson

• Decision Date: 19 June 1970
• Docket Number: No. 23168.,23168.
• Citation: 432 F.2d 626,139 US App. DC 193
• Parties: UNITED STATES of America v. Clarence JOHNSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

139 US App. DC 193, 432 F.2d 626 (1970)

UNITED STATES of America v. Clarence JOHNSON, Appellant.

No. 23168.

United States Court of Appeals, District of Columbia Circuit.

Argued January 26, 1970.

Decided June 19, 1970.

Petition for Rehearing Denied August 12, 1970.

Certiorari Denied December 7, 1970.

Mr. John C. Reid, Washington, D.C., (appointed by this court) for appellant.

Mr. Robert C. Crimmins, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and Richard A. Hibey, Asst. U. S. Attys., were on the brief, for appellee.

Before McGOWAN, LEVENTHAL and ROBB, Circuit Judges.

Certiorari Denied December 7, 1970. See 91 S.Ct. 257.

McGOWAN, Circuit Judge:

After a jury trial in the District Court, appellant was convicted of five counts of armed robbery, six counts of assault with a dangerous weapon, and one count of carrying a dangerous weapon. D.C.Code §§ 22-2901, 22-502, 22-3204. Concurrent prison sentences were imposed in respect of each count. In this court appellant complains that (1) the evidence was insufficient to sustain his conviction on the robbery and assault charges and (2) the so-called Allen charge given by the trial judge was unduly coercive under the circumstances. We affirm.

I

At approximately 1 P.M. on the date of the robbery, two police officers observed appellant's white 1960 Corvair sedan, driven by appellant and occupied by five companions, cruising slowly in the lot of a Safeway store at 17th and I Streets, Northeast. One of the officers testified that appellant was driving the car and the occupants appeared to be "casing" the store. When they sighted the police car, they took off at a high rate of speed and were lost in traffic. The officers noted the D.C. tag number, which was traced to appellant.

Not long thereafter, at approximately 2:55 P.M., a Safeway store at 6501 Georgia Avenue, Northwest, was robbed by five armed men. After the robbery, the men fled the store, crossed the street and entered what the pursuing victims testified to be a white 1960 or 1961 Corvair sedan which began to move before all the doors were closed, indicating that a driver was behind the wheel while the holdup took place. Employees of the store testified to the taking of money from the store cash registers totalling $2,226.22.

The incident was immediately reported to the authorities, and the relevant facts broadcast over the police radio. Hearing the broadcast, the officers who had first observed appellant's auto at 1 P.M. proceeded to the vicinity of appellant's home, knowledge of the location of which they had gotten from the license tag check. Shortly thereafter, appellant drove up and the officers approached the car. Seeing a pistol on the floorboard of the car, appellant was taken into custody, and $292.00 in bills, $3.00 in quarters, and revolver ammunition were found in appellant's pocket. The pistol, for which appellant did not have a license, was also seized.

The Government's case at trial consisted of descriptions of the event by the various victims, the testimony of two employees who observed the robbers as they left the store and entered the vehicle, and the testimony of the police officer about the earlier observation and the subsequent arrest. None of the Safeway employee witnesses could identify appellant.

At the close of the Government's case, appellant moved for a judgment of acquittal which was denied. Appellant presented no evidence.

In light of the extensive indictment, the charge of the trial court was long and complex. Near the close of its original charge, the court stated:

You should examine the questions submitted with candor and with proper regard and deference to the opinions of each other. You should listen to each other\'s arguments with a disposition to be convinced.

If much the larger number of jurors are for conviction, a dissenting juror should consider carefully whether his doubt is a reasonable one when it makes no impression upon the minds of so many jurors, equally honest, equally intelligent with him or herself.

If on the other hand, the majority are for acquittal, the minority ought to ask themselves and carefully consider whether they might not reasonably doubt the correctness of their judgment which is not concurred in by the majority.

The jury deliberated from 3:35 to 5:00 P.M., and were excused for the night without having reached a verdict. Shortly after resuming the next morning, it reported a deadlock; and at 10:10 A.M. the following charge was given:

Ladies and gentlemen of the jury, the mode for deciding questions of fact in criminal cases is by verdict of a jury.

In a large proportion of cases, absolute certainty cannot be attained or expected.

Although the verdict to which a juror agrees must, of course, be his own verdict, the result of his own convictions, and no mere acquiescence in the conclusion of his fellow jurors, yet in order to bring the minds of twelve jurors to a unanimous verdict, each juror must examine the questions submitted with candor and with proper regard and deference to the opinions of each other.

With this in view, it is your duty to decide the case if you can conscientiously do so.

In this case, the burden of proof is on the government to prove beyond a reasonable doubt every element of the offenses charged.

If the government fails to sustain this burden, you must find the defendant not guilty, but in conferring together you ought to pay proper respect to each other\'s opinions and listen with a disposition to be convinced to each other\'s arguments.

On the one hand, if much the larger number of your panel are for a conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one which makes no impression upon the minds of so many jurors, equally honest, equally intelligent with himself, who have heard the same evidence with the same attention and who equally desire to arrive at the truth under the sanction of the same oath.

On the other hand, if the majority are for acquittal, the minority ought to ask themselves seriously whether they might not reasonably doubt the correctness of the judgment which is not concurred in by most of those with whom they are associated.

In like manner, the minority should question the weight or sufficiency of that evidence which fails to sway the minds of their fellow jurors.

I want you to go back to the jury room and consider the case in the light of these additional observations that I have given you.

The jury retired to the jury room at 10:25 and returned at 2:20 P.M. with a verdict of guilty on all counts. This appeal from the robbery and assault convictions followed. No appeal was taken from the conviction for carrying a dangerous weapon.

II

Appellant's claim of error in the denial of his motion for acquittal rests heavily upon the fact that the two Safeway employee witnesses, who actually saw the bandits depart in the white Corvair, could not identify appellant as either one of the armed robbers who came into the store or as the driver of the car in which the get-away was accomplished.¹ It is also insisted that there was no specific testimony establishing that there was a driver waiting in the car for the return of the five described as having come into the store. Lastly, appellant asserts that white Corvair cars are not uncommon and, therefore, the observation of appellant and his companions earlier in the afternoon adds nothing to the proof.

We are not persuaded by this approach. It may be that there was a time when police officers did not observe so closely cars and their occupants in the vicinity of a Safeway store, but it is this kind of alertness which provides the police today with some slight chance of coping with the hit-and-run crime made possible by the combination of disoriented youths, easy access to guns, and the seemingly unrestricted availability of credit to buy automobiles, so prevalent in the contemporary urban scene.

That alertness supplied the license number of an automobile which, in turn, provided the key to detection. While Corvairs, and even white Corvairs, are not novel, when

(1) the circle is narrowed to a 7-8 year old white Corvair sedan occupied by five or six men,

(2) appellant is not only the undisputed owner of a car of that description but is also firmly identified as the driver of one such car seen "casing" another Safeway only two hours before the robbery of the Safeway charged in the indictment (and heading off at high speed when a police car is spotted),

(3) there is evidence rationally indicating that there was a driver waiting in the car outside the Safeway that was robbed,² and

(4) shortly after the robbery, appellant drives the car home, armed and in possession of some hundreds of dollars in cash, an amount within a reasonable range of an aliquot share of the sum taken from the Safeway,³

we think the case presents a combination of elements which a reasonable jury could conclude comports with the essence of the reasonable doubt standard.

The flow of events emerging from the testimony does not, of course, fix appellant's guilt beyond peradventure, but it creates that aura of probability which warrants committing the matter to the good sense of the jurors, instructed as to the legal standard of reasonable doubt and informed by their instinct for recognizing that point beyond which the odds of a miscarriage of justice become too great for the individual conscience to bear. There is no automatic and invariable measure by which the requisite quantum of evidence can be determined. The shadings of fact are infinite. Compare Bailey v. United States, 128 U.S. App.D.C. 354, 389 F.2d 305 (1967), with Goodwin v. United States, 121 U.S.App. D.C. 9, 347 F.2d 793 (1965). The legal formulae are, of course, readily at hand, but their incantation still leaves subjective judgments to be made. We cannot say here that the spectre of injustice was so perilously present as to make the judge's...