United States v. Sinclair

• Decision Date: 31 March 1971
• Docket Number: No. 23178.,23178.
• Citation: 144 US App. DC 13,444 F.2d 888
• Parties: UNITED STATES of America v. Rodney SINCLAIR, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

144 US App. DC 13, 444 F.2d 888 (1971)

UNITED STATES of America v. Rodney SINCLAIR, Appellant.

No. 23178.

United States Court of Appeals, District of Columbia Circuit.

Argued May 20, 1970.

Decided March 31, 1971.

Petition for Rehearing Denied May 6, 1971.

Mr. Stanley Klavan, Rockville, Md. (appointed by this Court) for appellant.

Mr. Richard L. Rosenfield, Atty., Department of Justice, of the Bar of the Supreme Court of Illinois, pro hac vice, by special leave of Court, with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and James R. Phelps, Asst. U. S. Attys., were on the brief, for appellee.

Before LEVENTHAL and ROBINSON, Circuit Judges, and DAVIES,^* U. S. District Judge for the District of North Dakota.

LEVENTHAL, Circuit Judge:

This is an appeal from a judgment, entered after verdict, of the felony of burglary in the second degree. 22 D.C.Code § 1801(b) (Supp. III, 1970). Appellant's sole complaint is the refusal of the trial judge to give a requested instruction on the lesser offense of unlawful entry, a misdemeanor under 22 D.C.Code § 3102 (1967). We affirm.

I. The Facts

The arresting officers testified that at 8:30 p. m. on April 5, 1968, three persons were seen running from the University Shop, a clothing store located at 1318 G Street, N.W., which had closed for business at 1:30 p. m. because of the widespread disturbances and looting following the assassination of Dr. Martin Luther King. While other officers chased the three persons, Officer Herman Cornish entered the store through a broken showcase window, the front door being locked. He found appellant hiding behind a clothes rack and arrested him as he was trying to sneak away. Appellant's hands were empty; he was carrying no merchandise; nor was any merchandise piled up in the vicinity where he had been. "The only words that this man said at the time was that he was just doing what everyone else was doing." (Tr. 17).¹

The trial judge instructed the jury on burglary in the second degree, but denied defense counsel's request for an instruction as to a lesser included offense. The jury returned a verdict of guilty.

As our opinions make clear, "if counsel ask for a lesser-included-offense instruction, it should be freely given." Walker v. United States, 135 U.S.App. D.C. 280, 283, 418 F.2d 1116, 1119 (1968); United States v. Huff, 143 U.S. App.D.C. ___, 442 F.2d 885 (1971). There must be evidence to support a finding of guilt on the lesser offense. Sparf v. United States, 156 U.S. 51, 63, 15 S.Ct. 273, 39 L.Ed. 343 (1895). This requirement is usually met by sharply conflicting testimony presenting a disputed factual element. See Sansone v. United States, 380 U.S. 343, 349-350, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). It is also satisfied when there is no conflict in testimony but the conclusion as to lesser offense is fairly inferable from the evidence, including a reconstruction of events gained by accepting the testimony of one or more witnesses only in part. Belton v. United States, 127 U.S.App. D.C. 201, 206, 382 F.2d 150, 155 (1967); United States v. Huff, supra; Driscoll v. United States, 356 F.2d 324, 328-329 (1st Cir. 1966), vacated on other grounds, 390 U.S. 202, 88 S.Ct. 899, 19 L.Ed.2d 1034 (1968).

However, as Belton held, the refusal to give the lesser-included offense instruction is not error when defendant's testimony is completely exculpatory and, if believed, could only lead to acquittal, and the kind of reconstruction of events needed to support a lesser charge is neither fairly inferable from the testimony nor pointed out by defense trial counsel.

Under these circumstances the request of defense counsel presented no rational basis for a lesser charge, i. e., a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense, United States v. Markis, 352 F.2d 860 (2d Cir. 1965), vacated on other grounds, 387 U.S. 225, 87 S.Ct. 1709, 18 L.Ed.2d 864 (1967). While defense counsel should be given the benefit of the doubt, and all fair inferences should be indulged, in the last analysis, as our decisions have pointed out,² there must be some rational basis for the lesser charge; otherwise it is merely a device for defendant to invoke the mercy-dispensing prerogative of the jury,³ and that is not by itself a permissible basis to require a lesser-included offense instruction. See Kelly v. United States, 125 U.S.App.D.C. 205, 207, 370 F.2d 227, 229 (1966), cert. denied, 388 U.S. 913, 87 S.Ct. 2127, 18 L.Ed.2d 1355 (1967).

This rule, like so many in the law, requires drawing a line. However the determination of what is fairly inferable from the evidence must be based on reason, calling on the understanding imparted by experience. The jury is instructed that a reasonable doubt is a doubt based on reason and "is not a fanciful doubt nor a whimsical doubt, nor a doubt based on conjecture."⁴ While a judge cannot eliminate the prerogative a jury retains to disregard his instruction and to acquit on the basis of conjecture rather than reason, the judge is not required to put the case to the jury on a basis that essentially indulges and even encourages speculations as to bizarre reconstruction. This is the rule of law even though, as we all know, what happens in life is sometimes bizarre, and it may be that on the night of April 5, 1968, there was more of the unusual than is ordinary even in Washington. Clearly the record supported as a fair inference that defendant intended to help himself to some clothing, at least if he found some clothing he liked.⁵ The question for the judge was whether there was a reasonable basis on which the jury could find the defendant guilty of unlawful entry beyond a reasonable doubt yet entertain a reasonable doubt whether the defendant entered through a broken store window for the purpose of committing an offense. One can speculate, e. g., that defendant took it upon himself to commit an unlawful entry because he was frightened outside, or because he was curious as to what the others in the store were doing, etc., etc.⁶ But we cannot call on such abstract and speculative possibilities, not rooted in experience or evidence, as requiring the reversal of the ruling declining to give a lesser-included offense instruction.

Affirmed.

SPOTTSWOOD W. ROBINSON, Circuit Judge (dissenting):

Trial by jury binds inseparably the jury's functions to determine not only innocence or guilt but also the accused's precise crime if guilty. In any appropriate case, the jury's verdict may convict of an offense specifically charged or, where the evidence warrants, of another "necessarily included" within a charged offense,¹ and the jury must be indulged enough range to do so. Either the Government or the accused may solicit instructions authorizing conviction of the lesser offense,² and the refusal to honor a valid defense request therefor is reversible error.³ I think appellant stood on solid ground in seeking instructions empowering the jury to convict of unlawful entry⁴ if persuaded by the proof to do so.

Instructions on lesser included offenses, of course, are not for the asking. The lesser offense must be "necessarily included in" the greater,⁵ and the request for instructions must be justified by the evidence,⁶ and ofttimes the question whether these prerequisites are satisfied is difficult. But since the burglary charged here⁷ necessarily embraced unlawful entry⁸ as a lesser crime,⁹the only remaining inquiry is whether the evidence presented a suitable occasion for instructions on each. My colleagues find no "rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. * * *"¹⁰ My interpretation of the trial record leads me to a different conclusion.

The testimony of Government witnesses, which obviously the jury believed, made it evident that appellant entered the store without right to do so. But the Government's proof, viewed in its strongest light,¹¹ was inconclusive beyond appellant's unauthorized presence in the store;¹² it bred uncertainty as to why he was there.¹³ There was no evidence of any appropriation of merchandise therein, or of any act or statement by appellant indicating unequivocally an intent to steal.¹⁴ Appellant's efforts to hide behind a clothes rack and to sneak away from the approaching officer connoted his mission in the store only ambiguously. They did not point inexorably to a criminal intent accompanying the entry; the jury might reasonably have taken them simply as a manifestation of appellant's awareness that, after all, he was where he shouldn't have been. Nor was the Government's presentation made any the more decisive by appellant's statement "that he was just doing what everyone else was doing;" like his actions, these words were of doubtful import.¹⁵ Both presented to the factfinders alternatives as to the inferences properly to be drawn, and consequently as to the crime of which appellant was actually guilty.

The case, then, was not such that the jury, if it convicted, had to convict of burglary and nothing else.¹⁶ The evidence, in my view, was susceptible to either of several interpretations, each logical and each with a different impact in terms of a verdict. If appellant's testimony¹⁷ were believed, he was entitled to outright acquittal. If the Government's submission left a reasonable doubt as to an essential element of burglary — and here intent on entry was the critical element — appellant was entitled to an acquittal of that offense. If, on the other hand, the Government's proof were accorded enough weight to dispel any reasonable doubt of appellant's guilt of burglary, conviction of that offense was in order. I think, however, that beyond these possibilities the jury could reasonably have rejected appellant's version, accepted the Government's as to every physical event it portrayed, and still have drawn therefrom an inference adverse to a...