United States v. Young

• Decision Date: 30 March 1972
• Docket Number: No. 24161.,24161.
• Citation: 463 F.2d 934,150 US App. DC 98
• Parties: UNITED STATES of America, v. James J. YOUNG, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

150 US App. DC 98, 463 F.2d 934 (1972)

UNITED STATES of America, v. James J. YOUNG, Appellant.

No. 24161.

United States Court of Appeals, District of Columbia Circuit.

Argued June 14, 1971.

Decided March 30, 1972.

Rehearing Denied May 31, 1972.

COPYRIGHT MATERIAL OMITTED

Mr. Patrick W. Lee, Washington, D. C. (appointed by this court), for appellant.

Mr. John R. Dugan, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., at the time the brief was filed, and John A. Terry and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before LEVENTHAL, ROBINSON and WILKEY, Circuit Judges.

LEVENTHAL, Circuit Judge:

Appellant was indicted for first degree murder and convicted of the lesser-included offense of second degree murder. His appeal claims that questions and remarks by the prosecutor in cross-examination and argument to the jury were improper and, in the absence of corrective instructions, deprived him of a fair trial. We affirm.

I. THE FACTS

The Government's Case

Margaret May related the following events: On Thursday, August 14, 1969, decedent Willie R. Jefferson participated in a card game held in the yard in back of his apartment building with appellant James J. Young and others.¹ All the participants were drinking. The game began around 2:30 p. m. and continued until 6:30 or 6:45 p. m. Shortly thereafter Jefferson, the big winner, offered to return his winnings to the others because he didn't need the money. As he started to hand the money back to the players Mr. Young "snatched" his share. Jefferson then "reached after Mr. Young, and Mr. Young got back," and Jefferson "told him if he do that again, he would have to get his gun." Mr. Young said he would likewise get his gun. Both men then left.

Jefferson entered his apartment, on the ground floor. Young went out onto the street and returned fifteen minutes later, came into the hallway, and knocked on Jefferson's apartment door. He had a gun in his right hand. Mrs. May's account continues:

He knocked on Mr. Jefferson\'s door real loud, and the door didn\'t open right then; so he took his foot and kicked the man\'s door in; and at that time, the door flew open; Mr. Jefferson at the door; and that is when Mr. Young asked, told him, you thought I wouldn\'t come back, and called him a bad word. M.F.

She then saw and heard Young shoot Jefferson three times and run out of the building. Jefferson had said nothing, had made no movement, and had nothing in his hand. This account was corroborated.²

The Alibi Defense

Appellant testified: He, Jefferson, and Mary Young played the entire game until it ended at 5:00 p. m. He testified that Jefferson had lost all his money and had to borrow from friends to continue. At one point Young caught Jefferson cheating, "and so I told him, if you all going to start cheating, I might as well get out the game." Appellant denied getting angry or arguing with Jefferson; he simply left the game. On the way over to pick up his car, he was met by Rudolph Ford, who had previously left the card game and gotten the car. They went to two bars until 7:00 p. m. and thereafter they went to Ford's apartment where they spent the rest of the night. Appellant learned of Jefferson's death by shooting on Sunday, August 17, the day he was arrested.

Edna Mae Green testified that she had seen Rudolph Ford and Clinton Lee leave the game around 4:30 p. m.; appellant left the game a short time later and was not present when Jefferson later left the game.

Rudolph Ford, the principal alibi witness, testified to the same effect as appellant Young, with some difference in details.³ He said he and Young had left their construction job early on August 14, cashed their paychecks at a liquor store, and gone to Mrs. Green's house where they decided to play cards. Ford left the game three times, first to buy some liquor, second, to check on Young's car which was being repaired, but was not yet finished, and the third time to pick the car up. He drove back to the area of the game at about 5:00 p. m. and picked up Young, who had left the game and was waiting for Ford at a corner.

Ford testified that he was with appellant until the next morning. They visited two bars and then spent the rest of the night at Ford's house in the company of Ford's relatives. Ford learned at work the next day that Jefferson had been shot. On Monday, August 18, he learned that Young was charged with shooting someone. When he visited Young in jail, he learned that Young was charged with shooting Jefferson.

II. PROSECUTOR'S CROSS-EXAMINATION OF ALIBI WITNESS AND REMARKS TO JURY

This trial presented the jury with a classic conflict, two irreconcilable lines of testimony. Appellant claims that the prosecution overstepped permissible bounds in attempting to discredit his alibi defense.

A. Failure of Alibi Witness Ford to Contact the Police

1. During his cross-examination of Rudolph Ford, the prosecutor asked:

Q. By the way, sir, you didn\'t give a statement to the police did you?

A. No, sir, I didn\'t.

Q. You didn\'t give a typewritten statement the next day like some of the other witnesses, did you?

A. No, sir, because I don\'t know nothing about it.

The trial judge interrupted, warning,

There is no indication Mr. Prosecutor this man was interviewed by the police. I think that question is not appropriate unless there is some indication that police interviewed him.

The prosecutor then asked whether Ford had contacted the police; he had not. In his argument to the jury, the prosecutor, seeking to portray Ford's alibi testimony as a fabrication, put it:

A man who never gave a statement, his name never comes up in the investigation, all of a sudden he shows up and testifies that the Defendant was with him.

* * * * * *

Rudolph Ford, who never even talked to the police, never even gave a statement, he tries to criticize Margaret May for not reporting it, but she gave a statement the next day. Ford never gave a statement. What kind of witness is that? That is the alibi defense.

We agree with the trial judge that it was improper for the prosecutor to examine the witness on whether he had given a statement to the police. And it was certainly improper for the prosecutor, after being cautioned, to make this point twice in his summation to the jury.

The same conclusion applies to the prosecutor's questions and comment concerning the witness's failure to contact the police. Ford was not interviewed by the police, and if, as he claimed, he did not know that appellant was charged with shooting Jefferson until he visited him in jail, he would not have had any reason to go to the police previously.

Nor is there any reasonable inference from Ford's failure to contact the police after he learned of the charge against appellant. When a person is approached by the police for questioning, our cases have "commented on the duty of every person to cooperate with police and to respond unless a Fifth Amendment claim is involved." Coates v. United States, 134 U.S.App.D.C. 97, 100, 413 F.2d 371, 374 (1969); see also Hicks v. United States, 127 U.S.App.D.C. 209, 212, 382 F.2d 158, 161 (1967). But no inference can be drawn from the fact that a witness did not go to the police when he learns they have made an arrest of a defendant for a crime committed at a time for which he can provide alibi testimony. He might reasonably presume that it was sufficient for him to relate his knowledge to the attorney retained or appointed to represent defendant.⁴

However, we do not think this improper questioning and comment was so prejudicial as to require reversal. As to the question concerning failure to contact the police, there was neither objection or warning. There was no repetition. Ford gave a satisfactory explanation. We see no substantial prejudice; in all likelihood the jury took it for a strained argument by the prosecution. As Judge Danaher has commented, prosecutors often overtry their cases, and in their zeal say things that are regrettable but are not significant in terms of influencing a conviction. Turner v. United States, 135 U.S.App.D.C. 59, 62, 416 F.2d 815, 818 (1969).

B. Prosecution References to "Missing Witnesses"

Appellant's major attack concerns efforts by the prosecutor to discredit his alibi by inferences to be drawn from the absence of persons mentioned in the alibi account.

On cross-examination, after appellant testified that one Hazel Davis drove him to the card game, the prosecutor asked "Is he here now?" and "Did you make any efforts to get him here?" Referring to Young's testimony that he cashed his paycheck at a liquor store, the prosecutor asked:

"Q: This man that cashed the check at the liquor store, did you make any efforts to get him here?

A: For what reason.

Q: Can you answer the question, yes or no?

A: I can\'t answer."

THE COURT: I think that is a proper answer. What possible reason would he have to have him here? I think the question is quite inappropriate and if an objection was made I would sustain it.

* * * * * *

At bench conference.

THE COURT: I have indicated to you before, Mr. ___, not only on this trial but on other trials, that I am not favorably disposed toward asking a man who is incarcerated in jail what efforts he has made to get witnesses present. The question of the choice of witnesses is a matter for the tactics and determination of his counsel in connection with the trial. I think it carries to the jury perhaps an implication that he had some obligation to bring these people where, frankly, I can\'t see where the testimony would be material.

* * * * * *

"He doesn\'t have to corroborate times that are not alibi times. You are talking about what he did in the morning in terms of whether he got two beers or six beers, which has nothing to do with alibi. I think in any event it is counsel\'s obligation to make those determinations and not an incarcerated man with no particular legal experience."

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