United States v. Skinner, 22776.

• Decision Date: 10 February 1970
• Docket Number: No. 22776.,22776.
• Citation: 138 US App. DC 121,425 F.2d 552
• Parties: UNITED STATES of America v. Hubert SKINNER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

138 US App. DC 121, 425 F.2d 552 (1970)

UNITED STATES of America v. Hubert SKINNER, Appellant.

No. 22776.

United States Court of Appeals, District of Columbia Circuit.

Argued October 24, 1969.

Decided February 10, 1970.

Mr. Wilmer B. Hill, Washington, D. C. (appointed by this court) for appellant.

Mr. Terry P. Segal, Asst. U. S. Atty., for appellee. Messrs. Thomas A. Flannery, U. S. Atty., Roger E. Zuckerman, Daniel J. Givelber, Asst. U. S. Attys., and Robert P. Watkins, Asst. U. S. Atty. at the time the brief was filed, were on the brief, for appellee. Mr. David G. Bress, U. S. Atty. at the time the record was filed, and John A. Terry, Asst. U. S. Atty., also entered appearances for appellee.

Before FAHY, Senior Circuit Judge, and McGOWAN and MacKINNON, Circuit Judges.

MacKINNON, Circuit Judge:

This case is unique in that practically all the critical evidence determinative of guilt was visual evidence presented by means of a court room demonstration. The principal question is whether the trial court properly denied appellant's motion for judgment of acquittal at the conclusion of the Government's case. Appellant Skinner was indicted for the following offenses: I, assault with intent to kill while armed (D.C. Code §§ 22-501, 22-3202); II, assault with intent to kill (D.C.Code § 22-501); and III, assault with a dangerous weapon (D.C.Code § 22-502). He was acquitted on Counts I and II and found guilty on Count III. Because the nature of the evidence posed essentially a jury question that the jury resolved against the appellant on unchallenged instructions, we affirm.

I

The Government's case consisted almost entirely of the testimony of the victim, Lowry, who while unarmed was shot in the head. He testified that on July 23, 1968 between 10 and 10:30 P.M. after having had a can of beer (or two) he was in front of a supermarket after having bought some cigarettes. Four people were on a rail in front of the store. He knew one of them, Deskins. He engaged in conversation with Deskins when they were interrupted by Skinner who said something that made Lowry very angry. Lowry replied that he was not talking to him and the best thing for him (Skinner) to do was to keep his mouth closed. Some additional arguing followed and then the group of four got up from the rail and left. When they had proceeded to a point about 30 feet away from Lowry someone yelled back, "I'll kill you." Lowry did not recognize the voice. His brother then told Lowry to leave, but he refused to do so and proceeded around the corner of the building following the group of four and still arguing and asking who had made the threatening statement. Lowry directed his remarks at Skinner because he believed Skinner said it. Lowry said "I don't believe you are going to kill me." Skinner did not then say anything further. The group of four then proceeded up the alley with Lowry trailing somewhat behind. At this point, Bell, a friend of Lowry's, tried to persuade Lowry not to say anything more about the threat. By this time the group of four had reached a point in the alley where they were standing in a row with about 1 to 2 feet (or 2 or 3 feet) separating each of the four on a ledge about 3½ to 4 feet above the level of the alley where Lowry was walking and where he later stopped. The lighting in the alley was good. Bell was still trying to persuade Lowry not to say anything further but Lowry kept proceeding up the alley. He soon arrived at a point where he was "right" "in front of" Skinner when "he (Lowry) was shot." At that moment Skinner was still standing on the ledge and at the extreme right of the other three who were all standing in a row separated as previously described.

Immediately prior to being shot Lowry observed Skinner standing on the ledge with his hand in his pocket "like this." Lowry was "at an angle towards" Skinner with his (Lowry's) "shoulder * * adjacent to him (Skinner)." The left side of Lowry's body and his shoulder were in front of Skinner, but he was not facing Skinner directly. Lowry never saw a gun. He "saw a flash of light and it just felt like I had run into a wall." He was hit by a bullet above his left eye, the bullet going in above his left eye and coming out to the right of his right nostril. A photograph of Lowry taken two days after the shooting corroborated the entry and exit points of the bullet.

The exact relative position of each person present and their posture at the time of the shooting was presented by Lowry to the jury by means of a demonstration and a sketch. He made a blackboard sketch of the location of those present, explained it by testimony and later, with the prosecutor assisting and using a court room table for the ledge, personally demonstrated the relative position of the participants. On cross examination the same demonstration was repeated. The evidence in this respect included a statement and demonstration by Lowry as to the path of the bullet and a denial that he was "just assuming" that Skinner shot him. Such evidence was received without objection.

Appellant's counsel on cross examination made two unsuccessful attempts to induce Lowry to support a defense theory of the path of the bullet. Lowry refused to do so and stood by his testimony given on direct examination. Appellant's counsel was similarly rebuffed by the judge when he made the same claim in connection with his argument on the motion for acquittal.

II

Appellant here contends that the trial court should have granted the motion for acquittal at the close of the Government's case and that the evidence is insufficient to support the verdict. His brief claims that the Government established nothing more than that Skinner was at the scene of the crime and there was no evidence that Skinner even had a gun. This is an extreme understatement of the evidence presented by the Government and of the inferences reasonably to be drawn therefrom. Appellant completely ignores critical visual evidence and the reasonable inferences therefrom.

It is axiomatic on motion for acquittal that all reasonable inferences are to be resolved in favor of the prosecution and the trial court is required to view the evidence in the light most favorable to the Government with respect to each element of the offense. Tanner v. United States, 401 F.2d 281 (8th Cir. 1968), cert. denied, 393 U.S. 1109, 89 S.Ct. 922, 21 L.Ed.2d 806 (1969); Maguire v. United States, 358 F.2d 442, 444 (10th Cir. 1966).

We likewise agree with appellant that the Government's case cannot rest on mere suspicion, conjecture or speculation. There must be sufficient credible evidence and justifiable inferences of fact from which a reasonable mind might fairly conclude guilt beyond a reasonable doubt. Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947); Crawford v. United States, 126 U.S.App. D.C. 156, 375 F.2d 332 (1967); Cooper v. United States, 94 U.S.App.D.C. 343, 218 F.2d 39 (1954). It is by these standards that we view the record in this case. When we apply these standards we find that a substantially stronger case for the Government is presented than appellant admits. The court had full opportunity to observe all the visual evidence and to hear the witnesses and on that basis decided that the case was for the jury and the jury with the same advantage concluded that Skinner is guilty.

The visual evidence presented was reasonably capable of producing such a verdict and the decisions of both the court and jury are thus based primarily on undisputed evidence of the highest probative value that is not available to a court on appeal. From such evidence the jury and court had a full opportunity to determine accurately the relative location of appellant with respect to the other participants at the critical moment when the shot was fired. Not only was the lateral position of the participants portrayed by the demonstration but also their relative elevation. The...