United States v. Martin, 71-1457.

• Decision Date: 26 January 1973
• Docket Number: No. 71-1457.,71-1457.
• Parties: UNITED STATES of America v. George A. MARTIN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

154 US App. DC 359, 475 F.2d 943 (1973)

UNITED STATES of America v. George A. MARTIN, Appellant.

No. 71-1457.

United States Court of Appeals, District of Columbia Circuit.

Argued June 7, 1972.

Decided January 26, 1973.

Durward M. Taylor, Washington, D. C., with whom Belford V. Lawson, Jr., Washington, D. C., was on the brief (both appointed by this Court), for appellant.

Thomas H. Queen, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Warren L. Miller, Asst. U. S. Attys., were on the brief for appellee.

Before BAZELON, Chief Judge, and McGOWAN and TAMM, Circuit Judges.

TAMM, Circuit Judge:

Appellant George A. Martin was tried before a jury and convicted of assault on George R. Thompson with intent to kill while armed and assault with a dangerous weapon on Robert B. Clark. He was sentenced to concurrent terms of ten years to life on the former count and one to three years on the latter. Appellant alleges numerous errors, none of which were raised at trial. After careful consideration of the record and arguments advanced by the parties, we find no substantial error which would merit reversal and evidence which overwhelmingly supports the verdict. Accordingly, we affirm.

I

The sequence of events immediately surrounding the assault must be gleaned primarily from the testimony of the three parties involved, Messrs. Thompson, Clark and Martin, there being no other eyewitnesses to the crime. The testimony of Thompson and Clark was consistent and corroborating. On the evening of April 11, 1970, shortly before 11:00 p. m., Robert B. Clark, dressed in a tuxedo and accompanied by a female companion, parked his car at the corner of 18th and P Streets, N.W., from whence he proceeded on foot less than one block to a nightclub near Dupont Circle. When he parked the car, his suspicion had been aroused by a man "leaning on the traffic light and looking at he and his date and looking at his car . . . who acted a little strangely." Apprehensive because he had left his overcoat in the car, Mr. Clark decided that it would be wise to return and move the vehicle to another location. He escorted his companion to the doorway of the nightclub where he encountered an acquaintance, George Thompson, who also planned to attend the nightclub dance. He asked Thompson to accompany him back to the car. The two men embarked, and as they approached the intersection of 18th and P Streets, Thompson noticed that there was a man, the appellant herein, apparently trying to force open the window of Clark's car. As Thompson and Clark approached, the man crossed over to the other side of the automobile where he was apparently trying to force the other window open. Thompson and Clark both yelled for him to "get away from that car." At this point appellant was standing near the rear of Mr. Clark's car on the street side ; Mr. Thompson had crossed in front of Clark's car to the street side and was about six feet from appellant ; and Clark was still on the sidewalk proceeding towards the rear of his car.

Thompson testified that Clark next yelled to appellant to the effect that it was Clark's car. Thereupon appellant, who was standing with his hands at his side in a relaxed position, lunged at Thompson and struck him on the side of the neck. By this time Clark had proceeded to the street behind the appellant, and appellant turned on him. Clark hit appellant, causing him to strike his head on the rear of the car and fall to the pavement. As he fell, a knife scooted from his hand and Thompson retrieved it. It was then that Thompson discovered that his own neck had been slit, a wound of about six inches which exposed the jugular vein and required thirty-two stitches to close.

Clark testified that upon observing a scuffle breaking out between appellant and Thompson he ran around the rear of the car to the street side. He observed Thompson going to his knees and appellant with one arm raised as if to strike another blow. He allegedly tapped appellant on the shoulder shouting "What are you doing," at which point appellant turned and swung at Clark's face with a knife or other sharp object. Clark ducked and then struck appellant several times causing him to fall and hit his head on the rear of the car thereby breaking the taillight.

The Government introduced Metropolitan Police Officer Landon H. Lewis, who had arrived at the scene shortly after the incident and found appellant in a semi-conscious state, with Mr. Clark assisting in administering first aid. According to his testimony, shortly after the incident in question appellant was taken to George Washington hospital for treatment. After questioning several individuals on the scene and seeing that Mr. Thompson was properly ministered to, Officer Lewis also proceeded to George Washington Hospital. By 1:00 a. m. appellant had been treated and had regained full consciousness and Officer Lewis testified that he was coherent and appeared to be cognizant of his surroundings. Appellant was then informed of the injury to Mr. Thompson, placed under arrest and advised of his rights. At that point, according to Officer Lewis, appellant said "Why am I here and why am I in this condition? I am good with a knife. The guy should be dead." Upon being released from the hospital and transported to the police station appellant also said "I should have killed the guy."

According to appellant, who testified in his own behalf, he had been at the home of his girlfriend where he had taken a "few drinks" while awaiting her return. He left the apartment and walked to the corner to await the bus, where he "might have been leaning on Mr. Clark's car." Mr. Clark, according to appellant, then came up behind him and asked him something. Appellant did not see him. Clark then allegedly hit him on the head "with a pipe or something," rendering appellant unconscious. Later appellant claimed that the "few drinks" amounted to a quart of Vodka, all contrary to the testimony of his purported girlfriend who stated that there was never any liquor in her apartment and that when she arrived home shortly after appellant left there were absolutely no signs of drinking.¹ During cross-examination appellant substantially revised his testimony. While still maintaining that he did not see Mr. Clark or the object with which he was purportedly struck, he stated that Clark had hit him on the front of the head with the object. The following colloquy then occurred:

Q. Prosecuting Attorney The first thing that happens is Mr. Clark comes and hits you with an object and you wake up in the hospital, is that correct?

A. Martin That\'s correct.

Q. And you never struck Mr. Clark or Mr. Thompson, is that correct?

A. That is correct.

Q. Then, how do you explain how Mr. Thompson as he was falling back happened to cut his throat? . . .

A. I believe—I didn\'t fall down the first time he hit me with this object. He hit me I\'d say two maybe three times. As he was hitting me with this object the other fellow, Mr. Thompson, had grabbed me trying to pull me down and as I was falling he fell down with me.

Appellant further testified that as he fell, Thompson must have cut his throat on the taillight of the car, which presumably was already broken. This was not only contrary to the testimony of Clark and Thompson, but was also refuted by Dr. Harris Slavick, the physician who treated Thompson. Dr. Slavick testified that, in his opinion, a wound as clean and sharp as the one in question must have been caused by a knife, razor or other similar instrument, and could not have been caused by a broken taillight. Appellant also introduced the testimony of Mr. and Mrs. Hampton, friends with whom he had briefly conversed just prior to the incident. On direct examination they testified that appellant was drunk, although on cross-examination they both conceded that appellant manifested none of the physical signs commonly associated with intoxication.² Moreover, Thompson and Clark had both testified, concordant with the testimony of Officer Lewis, that from their observations appellant did not appear to be intoxicated.

II

As a threshold matter appellant failed to preserve any of the issues which he now raises by timely objection at trial. This is contrary to Fed.R.Crim.P. 51, which provides that a party should make "known to the court the action which he desires the court to take or his objection to the action of the court and the grounds therefor . . . ." The significance of this requirement lies not only in the important "need for a record, developed by adversary processes, on which appellate consideration and resolution can safely proceed,"³ but also in considerations of fairness to the parties and the public in bringing litigation to an end after a full and fair opportunity has been afforded to present all issues of fact and law.⁴ Moreover, the rule serves the simple purpose of apprising the trial judge of errors so that he may correct them immediately and thereby maximize the likelihood of a just outcome. Rucker v. United States, 92 U.S.App.D.C. 336, 206 F.2d 464 (1953). The circumstances are particularly unfavorable to appellant since he alleges error in the jury instructions. Rule 30 specifically provides that no party may assign any portion of the charge as error unless he objects before the jury retires and distinctly states the matter to which he objects and the grounds for his objection. The matter would end here were it not for Rule 52(b)⁵ which permits the reviewing court to take notice of "plain errors or defects affecting substantial rights."⁶ Having carefully considered the record as a whole, we are now of the opinion that appellant has demonstrated only one error that merits comment. We proceed to a discussion of whether that error affected substantial rights.

III

Appellant was convicted of one count of assault with intent to kill while armed, a crime requiring specific intent. See, e. g., United States v. Bryant, 137...