United States v. Mack, 24950

• Decision Date: 30 June 1972
• Docket Number: No. 24950,71-1057 and 71-1122.,71-1659,24950
• Citation: 151 US App. DC 162,466 F.2d 333
• Parties: UNITED STATES of America v. Robert L. MACK, Appellant. UNITED STATES of America v. Harold L. JOHNSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

151 US App. DC 162, 466 F.2d 333 (1972)

UNITED STATES of America v. Robert L. MACK, Appellant.

UNITED STATES of America v. Harold L. JOHNSON, Appellant.

Nos. 24950, 71-1659, 71-1057 and 71-1122.

United States Court of Appeals, District of Columbia Circuit.

Argued April 21, 1972.

Decided June 30, 1972.

Certiorari Denied October 24, 1972.

COPYRIGHT MATERIAL OMITTED

Mr. Leonard I. Rosenberg, Washington, D.C. (appointed by this Court), with whom Mr. John B. Middleton, Washington, D.C., was on the brief, for appellant in Nos. 24950 and 71-1659.

Mr. Albert J. Ahern, Jr., Washington, D.C. (appointed by this Court), for appellant in Nos. 71-1057 and 71-1122.

Mr. Leonard W. Belter, Asst. U. S. Atty., with whom Messrs. Harold H. Titus, Jr., U. S. Atty., John A. Terry and Robert A. Shuker, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, SIMON E. SOBELOFF,^* Senior Circuit Judge for the Fourth Circuit, and LEVENTHAL, Circuit Judge.

Certiorari Denied October 24, 1972. See 93 S.Ct. 297.

SOBELOFF, Senior Circuit Judge.

The appeals of Robert L. Mack and Harold L. Johnson press upon us a host of alleged errors in their joint trial for: (1) first degree felony-murder, 22 D.C. Code § 2401; (2) first degree premeditated murder, 22 D.C. Code § 2401; (3) armed robbery, 22 D.C. Code §§ 2901, 3202; and (4) robbery, 22 D.C. Code § 2901. The jury returned guilty verdicts on the first three counts. No verdict was returned on the fourth count, the court having instructed the jury that if they found the defendant guilty of armed robbery, they need not consider the charge of simple robbery.

The Government's case hinged upon the testimony of four witnesses, each of whom had a different perspective of the course of events leading to the crimes charged. Witnesses Hubert Lawson and Fred Jones testified that, on August 2, 1969, they were visiting in the apartment of Fred ("Doc") Lewis when three men entered and offered to sell him some jewelry. At the time, Lewis was seated at a kitchen table on which there lay three to four hundred dollars in cash from an earlier card game. Lewis declined the jewelry offer and ordered the three out. When the intruders were reluctant to leave, Lewis brusquely demanded that they go, brandishing a kitchen knife to emphasize his demand. The three thereupon withdrew.

Moments later, Lawson left Lewis' apartment to go home. In the hallway outside, Lawson encountered the same three men and overheard them discussing "what was the matter with Doc." One of the trio, although Lawson could not be sure which, said to Lawson, "It looks like he Doc wants to be messy or something." Lawson replied, "Oh, I don't know. He's probably upset." At that, one of the group retorted, "Well, we'll upset him good, if, you know, he wants to be real messy." At this point, Lawson passed by them and left the building.

Soon after Lawson left the apartment, Jones, who had stayed behind, heard a man's voice shout, "Doc, you didn't have to talk like that. I didn't like the way you talked." Turning around, Jones saw appellant Mack shoot Lewis with what appeared to be a shotgun, then push him to the floor and begin beating him. During the shooting, the two men who had come in with appellant Mack seized some of the money from the kitchen table and ran out. Mack then went over to the table, took the remaining money, and ran out after them.

Lawson, who by now had reached the street, heard the shot. Turning back towards Lewis' apartment, Lawson, while still on the street, saw the same three men he had earlier observed now run down the stairs, through the door and up the street.

Lewis subsequently died in the hospital as a result of the gunshot wounds inflicted upon him.

On the day of the shooting, the police showed the eyewitness Jones a photographic spread containing eight pictures. From that display, Jones identified appellant Mack as Lewis' assailant. Jones reaffirmed that identification three months later at a police lineup and, once again, in court. However, Jones could not identify the second appellant, Johnson; and Lawson, the other individual present in Lewis' apartment, was unable to identify any of the participants in the shooting and robbery.

Since neither Lawson nor Jones was able to identify appellant Johnson at the scene of the crime, the Government was obliged to introduce the testimony of two additional witnesses, Charles Scott and Jeffery Green, to link Johnson with the events culminating in the robbery-slaying. Scott and Green testified that, on the day of Lewis' murder, they had a conversation with Mack, Johnson and a third man outside a restaurant located a short distance from Lewis' apartment.¹ After their talk, appellants Mack and Johnson, along with the third man, walked off in the direction of Lewis' nearby apartment. Approximately five minutes later, both Scott and Green heard a shot and saw Mack, Johnson and the third man run out of the apartment building and flee down the street.

Both defendants relied principally upon alibi defenses. Johnson testified that he was working at a garage at the time of the shooting and produced his employer to verify his story. Mack testified that, at the relevant time, he was helping his cousin and her son move furniture. Mrs. Belle Barry, Mack's cousin, testified in support of Mack's claim.

TRIAL ERRORS CLAIMED

1. Sufficiency of the Evidence

a. Although a number of errors were asserted, the point most strenuously pressed by appellant Johnson is that the aggregate of evidence admissible against him could not suffice to support his convictions. This contention necessarily embraces a number of other challenges Johnson makes to specific items of evidence. First, he insists that, since no witness was able to identify him directly as one of those inside the building when the crime took place, no evidence as to anything that occurred there is admissible against him.² Second, he maintains that, even if his first contention is rejected, Lawson's testimony as to what was said in the hallway outside Lewis' apartment by one of the three men must be inadmissible as to him because Lawson could not identify him as the declarant.

In our opinion, the District Court properly overruled both of these evidentiary objections. The testimony of witnesses Scott and Green placed Johnson, in the company of Mack, the identified killer, and another, entering the apartment building where Lewis lived. Just after the shot was heard the same three men were seen by Scott, Green and Lawson fleeing the scene. Lawson, moreover, testified that the three men he saw running out of the building after the shot were the same three he had seen inside only moments earlier.

We cannot say that a jury, possessed of this evidence, should be forbidden, as a matter of law, from drawing the entirely reasonable inference that the threesome going into the building shortly before the crime, and running out just after, was the same group that committed the robbery-murder. There is evidence enough to link Johnson with the events occurring inside the building so that testimony as to those events is admissible against him. It was solely for the jury to consider what effect the failure of either Jones or Lawson to identify Johnson as one of the men inside Lewis' apartment should have on the weight of the Government's case against Johnson.

As for the declaration in the hallway by an unidentified speaker, the Government likens this to a "verbal act" and argues that, as it was not offered to prove the truth of the substance of the declaration, it did not fall within the commonly accepted definition of hearsay. In this view, the declaration would be admissible without any necessity for identifying Johnson as its source or supplying other, specific identification of the declarant.

We agree. Lawson's testimony that one of the three men outside Lewis' apartment said they would "upset Doc good" was introduced not to prove that Doc was ultimately killed or to show who his killer was, but rather to illuminate the subject of the discussion in the hallway. See United States v. Arceneaux, 437 F.2d 924 (9 Cir.1971); United States v. Manfredonia, 414 F.2d 760 (2 Cir. 1969). Since the Government, under the second count of the indictment, was obliged to show premeditation before the killing, the declarations heard in the hallway were highly relevant on the issue of premeditation, regardless of their truth or falsity. Objections raised by appellant Johnson, based on the hearsay rule, do not, therefore, enter into the analysis and it is immaterial that Johnson could not be identified as the source of the declarations.³ Braswell v. United States, 200 F.2d 597 (5 Cir. 1952).

Plainly there was evidence sufficient to support Johnson's convictions. Viewing the evidence from the various perspectives of the witnesses who testified, Johnson was firmly linked with Mack, the identified slayer, by showing their entering the apartment building together just before the shooting and running away together just after the shooting. That Johnson still accompanied Mack during the escapades inside the building is strongly indicated by the testimony of Lawson, who swore that the three men fleeing the building after the crime were the same three he had earlier encountered. In light of Scott's and Green's testimony, identifying Johnson as one of the men fleeing the building just after the shot was heard, the inference is certainly allowable that Johnson was one of the two men who aided and abetted in Lewis' murder and who directly participated in the armed robbery. Given the sum total of this evidence, circumstantial and otherwise, the jury could readily have concluded, as they did, that Johnson was guilty beyond a reasonable doubt.

Our decision on this point also disposes of Johnson's assignment of error in the trial court's refusal to grant him a severance. The severance motion was premised on the assumption that a mass of...