Wheeler v. United States

• Decision Date: 03 November 1947
• Docket Number: 9441.,No. 9439,9439
• Citation: 82 US App. DC 363,165 F.2d 225
• Parties: WHEELER v. UNITED STATES. PATTON v. SAME.
• Court: U.S. Court of Appeals — District of Columbia Circuit

82 US App. DC 363, 165 F.2d 225 (1947)

WHEELER v. UNITED STATES.

PATTON v. SAME.

Nos. 9439, 9441.

United States Court of Appeals District of Columbia.

Argued April 17, 1947.

Decided November 3, 1947.

Writ of Certiorari Denied February 2, 1948.

Mr. James J. Laughlin, of Washington, D. C., for appellant Reginald J. Wheeler.

Mr. Curtis P. Mitchell, of Washington, D. C., with whom Mr. Wesley S. Williams, of Washington, D. C., was on the brief, for appellant Jesse James Patton.

Mr. John D. Lane, Assistant United States Attorney, of Washington, D. C., with whom Messrs. George Morris Fay, United States Attorney, and Charles B. Murray, Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellee. Mr. Sidney S. Sachs, Assistant United States Attorney, of Washington, D. C., also entered an appearance for appellee.

Before STEPHENS, CLARK and WILBUR K. MILLER, Associate Justices.

Writ of Certiorari Denied February 2, 1948. See 68 S.Ct. 448.

WILBUR K. MILLER, Associate Justice.

Jointly indicted under Title 22, § 2401, D.C.Code (1940),¹ Reginald J. Wheeler and Jesse James Patton were found guilty when tried together in the District Court of the United States for the District of Columbia. They appeal from the judgment sentencing them to death.

The facts reveal a wanton, cold-blooded murder. Two Negro men, bent on robbery, went into a drug store at the corner of 18th Street and Florida Avenue in the District of Columbia shortly before 11:00 o'clock on the morning of June 5, 1946. One stopped in the front of the store near the soda fountain, behind which were two women clerks. The other proceeded to the prescription and liquor departments in the rear, where he pointed a revolver at Thomas F. Nusbickel, the pharmacist, and demanded to know the location of the safe. As Nusbickel protested, Maurice L. Bernstein, the proprietor, came up the steps from the basement. Turning from Nusbickel, the robber fired at Bernstein, killing him almost instantly. After rifling the cash register, he returned to the front of the store where his companion was restraining the fountain clerks and a small boy customer by menacing them with an automatic pistol. At the killer's suggestion, the other bandit demanded the contents of the fountain cash register and one of the women handed over the money. Both men then left the store.

The appellant Patton was arrested about 3:00 a. m. on Sunday, June 9th, but was not questioned about the crime until Monday, June 10th, at 7:00 p. m. Informed at that time by an officer that he was believed to have been implicated in the Bernstein murder, Patton said, "If a person goes into a place and holds it up, but is not the man who pulls the trigger, does that make him just as guilty as the one that does the shooting?" He was told that only the courts could answer that question. Thereupon Patton told the officers that he and Wheeler entered the store together for the purpose of robbing it. He had kept the two women and the boy at bay while Wheeler went to the back of the store. Patton heard a noise which he thought was a gunshot, after which Wheeler rejoined him and told him to get the money out of the fountain cash register. At his demand, one of the women handed the money to Wheeler. The two then went in a taxicab to 14th and Riggs Streets. After alighting, they divided the money and separated.

The two soda fountain clerks had been out of town over the week end and were not available until Monday night about midnight, some five hours after Patton's confession. At that time a police line-up was held in which the two clerks positively identified Patton as the man who had threatened them with a gun. Shortly thereafter Patton admitted to them and to Nusbickel that he and Wheeler had committed the crime, and related the details.

Wheeler was arrested by District of Columbia officers in a farmhouse in South Carolina about 4:40 a. m. on Thursday, June 13th. When the officers entered his room, Wheeler said, "How did you fellows know I was down here? Have you got Patton?" When he had been placed in the officers' automobile he found a Washington newspaper in which he read an account of the murder. He then said, "Patton is trying to put everything on me," and proceeded to tell the story of the crime, in the course of which he admitted that he had done the shooting. When Wheeler was arrested a revolver was found in his possession. A firearms' expert of the Federal Bureau of Investigation testified that the bullet which killed Bernstein had been fired from the revolver which Wheeler had at the time of his arrest. Both Wheeler and Patton signed written confessions.

At the trial, Wheeler denied having made any confession. His story was that Patton borrowed the revolver on the morning of June 5th, saying that he was going out to get some money, and that he returned it to him that afternoon. Wheeler claimed that at the time the crime was committed he was at his home at 434 Franklin Street, N. W. He was identified, however, by Nusbickel and the small boy who was the customer at the soda fountain. He was identified by the taxi driver in whose cab he and Patton had ridden immediately after the murder.

Patton's defense was that he first intended to participate in the robbery but changed his mind and withdrew from the enterprise. He testified, however, that he had held his gun on the three persons in the front of the store and had received a part of the proceeds of the crime.

1. Wheeler's assignment of errors.

Because this is a capital case, we have considered the entire record with unusual care, and shall discuss each of the alleged errors which Wheeler says entitle him to a reversal, despite the fact that in our view unquestionably competent evidence clearly proved his guilt, and despite the rule that "When guilt is clearly established by competent evidence, error in the admission or exclusion of other evidence or in the charge to the jury which does not affect the substantial rights of the accused does not call for the reversal of a conviction."²

The first contention is that his motion for a severance was improperly denied. Its basis was "that defendant cannot obtain a fair and impartial trial since the codefendant has made admissions and confessions out of the presence and hearing of the defendant, and defendant would be seriously prejudiced if forced to go to trial with the codefendant." Patton's extrajudicial statements implicating Wheeler were admitted in evidence. Wheeler was not prejudiced thereby, however, for Patton's testimony from the witness stand, clearly admissible, was substantially to the same effect as his former statements with reference to Wheeler's participation in the the crime. Under almost identical circumstances we held in the Borum case³ that an inadmissible confession by a codefendant was rendered innocuous when the confessing defendant reiterated his previous statement as he testified to the jury. The point is not pressed by Wheeler, who correctly concedes the general rule to be that persons jointly indicted should be tried together, and that granting separate trials is a matter of discretion.⁴ It does not appear in this case that the trial judge abused his discretion by refusing to grant a severance.

Wheeler complains that the trial judge improperly restricted cross-examination, improperly interfered with his presentation of the case because he was convinced of the guilt of both defendants, improperly excluded evidence which was vital to him, and that the United States Attorney was guilty of impropriety in endeavoring to hamper a proper defense on behalf of the appellants. We have examined the record with great care in considering these contentions and have found no basis to support them. As the Supreme Court of the United States said in Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 471, 86 L.Ed. 680, "We must guard against the magnification on appeal of instances which were of little importance in their setting."

Wheeler also asserts that the trial judge was in error in denying "prayers"⁵ requested by him. Without entering into a detailed discussion of the several instructions which Wheeler offered and which were refused, it is sufficient to say that the substance of all of them was amply covered by the trial justice in his charge to the jury. A defendant cannot insist that the jury be instructed in the exact language chosen by him.⁶

Wheeler's contention that the court erred, when summarizing the evidence, in placing undue emphasis on that of the prosecution and in minimizing the evidence of the appellant was adequately answered by the trial judge himself, who pointed out in reply to the same criticism of his charge that he had taken longer to summarize the evidence for the prosecution because it was more voluminous than that of the appellant. Wheeler does not claim that certain facts were "singled out" without consideration of other modifying facts, as was the case in Meadows v. United States, 65 App.D.C. 275, 82 F.2d 881.

Wheeler's final assignment of error is that his motion for a mental examination should have been granted. Suffice it to say that Wheeler did not make the prima facie showing of mental incapacity which is necessary to require the court to order a complete mental examination.⁷

The judgment against Wheeler must be and is affirmed.

2. Patton's assignment of errors.

Several of the reasons for reversal offered by Patton are identical with those relied on by Wheeler. We shall discuss only the points made by Patton which were not suggested by Wheeler and therefore were not disposed of in the earlier portion of this opinion.

Patton complains that the court erred in refusing to instruct the jury that two separate offenses of robbery were charged and proved. In so doing he overlooks the following portion of the judge's charge to the jury: "Counsel for the defendant Patton urges that at best the two robberies were not a single...