United States v. Jones, 72-1479.

• Citation: 482 F.2d 747,157 US App. DC 158
• Decision Date: 16 July 1973
• Docket Number: No. 72-1479.,72-1479.
• Parties: UNITED STATES of America, Appellee, v. Wilbur JONES, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

157 US App. DC 158, 482 F.2d 747 (1973)

UNITED STATES of America, Appellee, v. Wilbur JONES, Appellant.

No. 72-1479.

United States Court of Appeals, District of Columbia Circuit.

Argued February 26, 1973.

Decided July 16, 1973.

Rehearing Denied August 22, 1973.

Nathaniel P. Breed, Jr., Washington, D. C., with whom Robert Reed Gray, Washington, D. C., (both appointed by this court) was on the brief, for appellant.

Richard L. Beizer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Jerome Wiener, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, MacKINNON, Circuit Judge, and VAN PELT^*, United States Senior District Judge for the District of Nebraska.

VAN PELT, Senior District Judge:

This case comes before the court upon appeal from a judgment of conviction for manslaughter following a jury verdict of guilty. Appellant was sentenced to a term of not less than two years and not more than six years imprisonment.

The events which led to the indictment of Appellant on a charge of second degree murder occurred on April 14, 1971. Appellant was at the home of his common law wife, Mrs. Estelle M. Henderson. Betty Henderson, an eleven year old daughter of Mrs. Henderson, told Appellant that some men were tampering with cars, including a car owned by Appellant, parked in a vacant lot across the alley from the back yard of the house. He took a loaded shotgun which he kept in the house and proceeded to the back yard. He told the men to leave his car alone, but received an abusive reply. Shortly thereafter Appellant fired the shot which killed the victim. He then left the house taking the two youngest children.

Appellant testified in his own defense. He stated that when Betty told him of the men, he looked through the rear window and saw three men. He recognized one of the men as an individual who had robbed and assaulted him a month earlier. He told one of the children to call the police, took his shotgun and went into the back yard with the gun partially concealed with a blanket. He asked the men to leave and threatened to call the police, but the men replied with abusive language. He did not show the shotgun, but rather turned to reenter the house. When he was on the steps of the porch at the rear of the house, he glanced over his shoulder and saw one of the men reach for a pistol. He turned, fired blindly and reentered the house. He saw one of the two remaining men take the pistol with them. Appellant told the oldest child to call the police and an ambulance, left the house with the two youngest children, and drove to an apartment rented by him in order to pick up a sum of money. On the way to the apartment, he went to the Anacostia River and threw the shotgun into the river. He testified that he did this because of his confused mental state. Later, he turned himself in to the police.

The police testified that they found a pair of pliers under the victim but no weapon. They also found an expended shotgun shell in the middle of the back yard some forty-one feet from the victim.

Betty Henderson testified that she did not see the shooting, but that she did see the victim about to fall when she looked out the back window there was a conflict in her testimony as to where she was when she looked into the back yard and saw that as he was falling he had no weapon.

The oldest child, twelve year old Annie, also testified, and it is around her testimony that much of the controversy in the instant case revolves. Prior to the trial she told the prosecutor that the victim did not have a gun. She told a defense investigator that the victim did have a gun. At the trial she related both versions.

Appellant argues¹ that certain errors occurred in the proceedings below which are sufficient, standing alone, to warrant reversal by this court. In addition, Appellant argues that the cumulative effect of these errors warrants reversal² even if the errors standing alone are considered harmless.

INSTRUCTIONS

Two of the alleged errors involve instructions given by the trial court. After four hours of deliberation the jury sent a note asking for an explanation of the manslaughter charge. The trial court viewed this as a request for a repetition of the charge and thus proceeded to reinstruct the jury. The court admonished the jury that "they must recall all of the other instructions the Court has given . . ., instructions with respect to reasonable doubt and self defense. . . . You can assume that I have repeated all of those matters to you at this time and I will simply at this time discuss the elements of manslaughter." There was no request for, and the trial court did not repeat, the self-defense instruction. Appellant argues this was plain error under Rule 52(b).

The trial court gave an instruction on flight and concealment.³ Appellant argues that this, too, was plain error under Rule 52(b).

No objection was raised by defense counsel as to either of these instructions when given. Although it is true that under certain circumstances each charge might be the subject of criticism,⁴ there is nothing in the record to justify calling the court's instructions plain error,⁵ either standing alone or in conjunction with other alleged errors.

TESTIMONY OF ANNIE HENDERSON

Appellant further argues that the trial court erred in failing, sua sponte, to strike the testimony of Annie Henderson.⁶ An understanding of this issue is impossible without a detailed review of the girl's testimony. After examination, the court was satisfied that Annie was competent to testify and so held. After several preliminary questions the prosecutor asked Annie "whether the victim had anything at all in either one of his hands." Twice she shook her head to indicate "no." When, however, the court asked Annie to speak up and "tell the jury what she saw," the following took place:

"The Witness: A gun.

The Court: In whose hands?

The Witness: In the man hands laying sic down.

By Mr. Wiener: Government prosecutor

Q. Who had the gun?

A. A man, that was laying sic down."

The court then permitted the Government to cross-examine the witness. The Government elicited from Annie the statement that the victim had the gun tucked in his belt and was reaching for it when he was shot. Annie was asked about a written statement she had given the police concerning the incident and she admitted making statements contained therein. This written statement did not deal with whether the man had a gun when shot. The prosecutor then asked Annie about an oral statement she had made to him, during a pre-trial interview, that the man did not have a gun. Annie admitted making the statement but testified that she had not told him the truth. Upon further questioning the witness again changed her testimony and stated that she had told him the truth about the absence of a gun.

The following colloquy then took place between the court and the witness:

"The Court: Young lady, you have said two things now. You have said one time that the man had a gun, and another time you have said he didn\'t have a gun.

Will you take your hands down from your mouth. You tell the jury which it is. Did he have a gun or did he not have a gun?

The Witness: Tell the jury?

The Court: Tell the truth. Did he have a gun or did he not have a gun?

The Witness: He did not have a gun."

On cross-examination the witness stated that she had not understood the questions asked by the Police, but that she had understood her written statement. She also testified that she had had an interview with a Legal Aid investigator, to whom she had stated that the victim had a gun.

On re-direct the witness nodded assent when asked whether she had told the truth when she had stated that the victim had no gun.

On re-cross the witness stated that she had lied to the prosecutor but had told the truth to defense counsel.

This recitation of the testimony reflects the obvious difficulties in ascribing any weight to Annie's testimony and tends to support Appellant's argument that the self-contradictory nature of the testimony renders it without probative value.⁷ In analyzing this testimony, we are dealing with the matters of competency and credibility, matters which are normally within the province of the trial court and the jury, respectively. As to competency, this court has said that "whether a person is legally competent to testify as a witness is a matter that rests largely within the discretion of the trial court," and this discretion will not "be disturbed except where `clearly erroneous.'"⁸ Indeed, it has become the modern trend to limit even the trial court's power to exclude testimony because of incompetency and to make the pivotal question one of credibility:

"The liberalization that has been accomplished in the practice has come by liberalization in judicial custom, as the statutes have seldom purported to change the common law standard.

Disqualification for mental capacity or immaturity would doubtless have long since been abandoned, except for the presence of the jury as the trier of facts. The judges distrust a jury\'s ability to assay the words of a small child or of a deranged person. Conceding the jury\'s deficiencies, the remedy of excluding such a witness, who may be the only person available who knows the facts, seems inept and primitive. Though the tribunal is unskilled, and the testimony difficult to weigh, it is still better to let the evidence come in for what it is worth, with cautionary instructions."⁹

It seems clear, however, that this Circuit has not gone so far as to hold, in line with this modern trend, that the question of competency should be relegated to such a minor role. The test for competency of a child witness "depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former."¹⁰ And in United States v. Hardin, 143 U.S.App.D.C. 320, 443 F.2d 735 (...