UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeals from the United States District Court for the District of Columbia. 1973.CDC.139
Wright and Tamm, Circuit Judges, and Davies,* Senior District Judge.
The series of events culminating in the death of 15 year old Vernon L. Gulledge began at approximately 11:00 o'clock p.m., May 21, 1971, in a shopping center parking lot on Eastern Avenue, Washington, D.C. The appellants, 26 year old Henry H. Jones, Jr. and 21 year old William E. Hawkins, entered the shopping center intending to make a liquor purchase. Prior to entering the liquor store, Jones confronted six youths, all under 16 years of age, standing in the parking lot and, after brandishing a knife, ordered them to leave before he returned. The youths moved to an area in front of a bowling alley and one left to get his older cousin. When Jones returned he again confronted the youths, inquiring why they were still there. At this point the 18 year old cousin and his 21 year old friend arrived on the scene and a fight ensued. Jones and Hawkins lost and left the parking lot. The youths, intending to meet later at a restaurant, split up - three leaving in the cousin's car and three, including the deceased, on foot.
Meanwhile the appellants met two friends with a car and related what had happened. The friends suggested looking for the youths. The four drove down Eastern Avenue to the intersection of Oglethorpe Street where they encountered Gulledge and his two friends who were identified by appellant Jones as, "Yes, that's them." The youths started running in various directions with Gulledge, pursued by Hawkins and Jones, fleeing toward a car parked on the street. Hawkins caught Gulledge at the rear of the car and commenced beating him. Jones then approached, holding a knife, and stabbed Gulledge four times, causing his death. When Theodore Corbett, who had been standing next to the car, tried to intervene he too was stabbed in the stomach, a wound from which he recovered.
A Grand Jury indictment was returned in which Jones and Hawkins were jointly charged in Count One with first degree murder, a violation of 22 D.C. Code § 2401. *fn1 Jones alone was charged in the second count of assault with intent to kill while armed, a violation of 22 D.C. Code 501, 3202. *fn2
At trial neither appellant disputed the basic facts, Jones relying upon insanity as a defense, and Hawkins asserting lack of intent to commit murder. The jury rejected both defenses, finding Jones guilty of both first degree murder and assault with intent to kill while armed; Hawkins was found guilty of second degree murder, a lesser included offense, under 22 D.C. Code § 2403.
The principal issue presented on this appeal, and which we think to be dispositive of it, is whether the prosecutor's improper closing and rebuttal arguments were so highly prejudicial as to require reversal. *fn3
Interspersed throughout the Government's closing and rebuttal arguments were the following:
"You can read the paper in the big cases and it always is there, isn't it, Sirhan Sirhan, Jack Ruby, Ammidown, Timm and Caldwell, when they were caught red-handed in front of an audience or bevies of people, they turn to insanity because that is their only hope."
"Now, oh, he is dangerous, he is a murderer. But he is not mentally ill. Sirhan Sirhan and Jack Ruby and Ammidown, they didn't fool anybody, nor does he, has he?"
". . . . He is not crazy, ladies and gentlemen, or insane, you know somebody passed me in the hall a moment ago and said ...