UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Certiorari Denied October 24, 1972.
Bazelon, Chief Judge, Simon E. Sobeloff,* Senior Circuit Judge for the Fourth Circuit, and Leventhal, Circuit Judge.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SOBELOFF
The appeals of Robert L. Mack and Harold L. Johnson press upon us a host of alleged errors in their joint trial for: (1) first degree felony-murder, 22 D.C.Code § 2401; (2) first degree premeditated murder, 22 D.C.Code § 2401; (3) armed robbery, 22 D.C.Code §§ 2901, 3202; and (4) robbery, 22 D.C.Code § 2901. The jury returned guilty verdicts on the first three counts. No verdict was returned on the fourth count, the court having instructed the jury that if they found the defendant guilty of armed robbery, they need not consider the charge of simple robbery.
The Government's case hinged upon the testimony of four witnesses, each of whom had a different perspective of the course of events leading to the crimes charged. Witnesses Hubert Lawson and Fred Jones testified that, on August 2, 1969, they were visiting in the apartment of Fred ("Doc") Lewis when three men entered and offered to sell him some jewelry. At the time, Lewis was seated at a kitchen table on which there lay three to four hundred dollars in cash from an earlier card game. Lewis declined the jewelry offer and ordered the three out. When the intruders were reluctant to leave, Lewis brusquely demanded that they go, brandishing a kitchen knife to emphasize his demand. The three thereupon withdrew.
Moments later, Lawson left Lewis' apartment to go home. In the hallway outside, Lawson encountered the same three men and overheard them discussing "what was the matter with Doc." One of the trio, although Lawson could not be sure which, said to Lawson, "It looks like he [Doc] wants to be messy or something." Lawson replied, "Oh, I don't know. He's probably upset." At that, one of the group retorted, "Well, we'll upset him good, if, you know, he wants to be real messy." At this point, Lawson passed by them and left the building.
Soon after Lawson left the apartment, Jones, who had stayed behind, heard a man's voice shout, "Doc, you didn't have to talk like that. I didn't like the way you talked." Turning around, Jones saw appellant Mack shoot Lewis with what appeared to be a shotgun, then push him to the floor and begin beating him. During the shooting, the two men who had come in with appellant Mack seized some of the money from the kitchen table and ran out. Mack then went over to the table, took the remaining money, and ran out after them.
Lawson, who by now had reached the street, heard the shot. Turning back towards Lewis' apartment, Lawson, while still on the street, saw the same three men he had earlier observed now run down the stairs, through the door and up the street.
Lewis subsequently died in the hospital as a result of the gunshot wounds inflicted upon him.
On the day of the shooting, the police showed the eyewitness Jones a photographic spread containing eight pictures. From that display, Jones identified appellant Mack as Lewis' assailant. Jones reaffirmed that identification three months later at a police lineup and, once again, in court. However, Jones could not identify the second appellant, Johnson; and Lawson, the other individual present in Lewis' apartment, was unable to identify any of the participants in the shooting and robbery.
Since neither Lawson nor Jones was able to identify appellant Johnson at the scene of the crime, the Government was obliged to introduce the testimony of two additional witnesses, Charles Scott and Jeffery Green, to link Johnson with the events culminating in the robbery-slaying. Scott and Green testified that, on the day of Lewis' murder, they had a conversation with Mack, Johnson and a third man outside a restaurant located a short distance from Lewis' apartment. *fn1 After their talk, appellants Mack and Johnson, along with the third man, walked off in the direction of Lewis' nearby apartment. Approximately five minutes later, both Scott and Green heard a shot and saw Mack, Johnson and the third man run out of the apartment building and flee down the street.
Both defendants relied principally upon alibi defenses. Johnson testified that he was working at a garage at the time of the shooting and produced his employer to verify his story. Mack testified that, at the relevant time, he was helping his cousin and her son move furniture. ...