UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
April 27, 1977
UNITED STATES OF AMERICA
RAY WILLIAMS, APPELLANT 1977.CDC.96 DATE FILED: APRIL 27, 1977
Bazelon, Chief Judge, and Wright, McGowan, Tamm, Leventhal, Robinson, MacKinnon, Robb and Wilkey, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
561 F.2d 859 at 867.
Date Reported: Supplemental Opinion on Sua Sponte Suggestion for Rehearing En Banc (D.C. Criminal 75-12). Original Opinion of February 23, 1977 at: 561 F.2d 859.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MACKINNON
On consideration of the sua sponte suggestion for rehearing en banc and a majority of the judges of the court in regular active service not having voted in favor thereof, it is
ORDERED by the court, en banc, that the aforesaid sua sponte suggestion for rehearing en banc is denied.
Statement of Circuit Judge MACKINNON, in which Circuit Judges TAMM, ROBB and WILKEY join, is attached.
STATEMENT OF JUDGE MACKINNON
MACKINNON, Circuit Judge:
I have voted to rehear this case en banc in order to maintain the uniformity of our decisions. FED. R. APP. P. 35(a). I
Justice Clark's dissent alone sets forth an adequate basis for rehearing en banc. The following additional reasons also exist.
Sprinkled throughout the majority opinion are understatements of facts which do not fairly reflect the strength of the circumstances that are probative of guilt, and comments are made on the Government's theory that do much less than justice to the Government's position. For example, at page 863 the majority opinion states "the prosecutor's closing argument casts considerable doubt on any claim that the photographs here were decisive." This is an unjustifiable attempt to characterize the Government as representing that its case was weak. But the reason given is an insufficient one for reversing the jury's verdict because the photos do not have to be "decisive."
The Government pointed out that this is an unusual case in that you almost have a movie of this whole robbery because there are over two hundred frames, that means individual pictures of these two reels of films that I have . . . . Pay very careful attention to them, ladies and gentlemen. *fn1 But they are not the most crucial element in this case. . . . &2 (Emphasis added.)
(Closing Argument Tr. 3). Guilt thus in the Government's view never depended on the photographs being "decisive." Actually the Government's case rested on all the evidence: (1) the photographs,3 the visual identifications (Tr. 175, 176), (3) the coat (jacket) and (4) the money (Closing Argument Tr. 9, 12), and the relationship of each to the other.
Even if there was no other evidence of guilt the law does not compel a conclusion that the jury could not consider the pictures as decisive, particularly in relation to other aspects of the proof of guilt. The pictures of the coat alone could have been decisive as a practical matter. Williams was arrested on December 3, 1974, fifteen days after the bank robbery. When arrested he was wearing a coat (jacket) that exactly matched the coat in the pictures (Closing Argument Tr. 26). The majority opinion fails to state this vital fact, this being another instance where it attempts to play down the evidence of guilt. This jacket was introduced as Government's Exhibit 1d. Personal examination of the jacket exhibit and comparison with the photographs of the robbery discloses the following: The snaps the jacket used in lieu of buttons have the exact same metallic color and are exactly the same size, and are located in exactly the same places that would result in the reproduction that appears in the photographic exhibits. The style and length of the jacket are exactly the same in every particular. The flaps on the two breast pockets are cut in exactly the same scalloping design that are reproduced in the photographic exhibits; the collar with the long points is exactly the same as reproduced in the photographic exhibits. In other words, the jury might have relied on the jacket alone, when compared with the pictures, as the decisive indication of guilt.4
The Government argued to the jury:
We are urging you, ladies and gentlemen, to consider that the testimony of Mr. Higdon and Miss Sachs [identification witnesses] is actually as probative and as important in this case as these photographs.
(Closing Argument Tr. 4). From this it is apparent that the Government did not contend that the photographs were "decisive." After reading this argument it is obvious that the majority opinion is incorrectly representing the record when it states:
[The prosecutor] followed every mention of the photographs with a suggestion that the jury consider the testimonial evidence, rather than the photographs, as the primary evidence.
Maj. op. at 863 (emphasis added). The prosecutor's argument (supra) clearly placed the evidence of the eyewitness identifications and the photographs on the same basis; not that the jury should look to the identification testimony and not to the pictures (as is indicated by the statement that the testimonial evidence should be considered " rather than the photographs.") But whether one class of evidence was more persuasive than other evidence is not of controlling importance here. What is apparent is that Williams was clearly shown to be a principal participant in the bank robbery by all the evidence. II
The defense offered several alibi witnesses. The majority opinion so states (Maj. op. at 8), but it fails to state that all the alibi witnesses (who testified that Williams was attending a birthday party for his niece's son at noon when the bank was robbed) were fatally impeached. Each one of them contradicted each other on some principal point concerning the alleged birthday party. One witness said Williams' hair was maybe a little longer on the sides and he had a mustache but the mustache only came down to around the lip area. The other alibi witness said he didn't have any hair and he didn't have any mustache. A third witness agreed that he looked "like the Ray Williams that you see before you today [in court]" (Tr. 272). Actually, he had shaved his head and mustache after the robbery and before his arrest and lineup (cf. Tr. 102, 229, and photographic Exhibits 2, 3, frames of entire robbery, Ex. 4, lineup, Ex. 8, individual photos when arrested, Tr. 104, 185, 222). The comparison of appellant with the pictures of the robbers was for the jury to make and an appellate court has no way of evaluating their identification. They were evidently very conscientious in this responsibility because after they were allowed to see the photographic exhibits in the jury room they returned to the courtroom and had the defendant stand before them, obviously so they could make, or not make, their own identification. See United States v. Skinner, 138 U.S. App. D.C. 121, 425 F.2d 552 (1970).
The alibi witnesses also differed in their testimony as to the coming and going of the parties. Sharon McLean testified that her uncle, Williams, left first, then Rhoda Johnson and then Pat Corley (Tr. 244). Rhoda Johnson testified that she and Williams left together (Tr. 276). Also, the willingness of the alibi witnesses to testify to remembering in the minutest detail practically everything they did on November 19, 1974, was enough to shake any person's confidence in their testimony. It was thus rather apparent, as the jury obviously found, that the alibi witnesses were testifying falsely in some particulars.
The great lengths to which the majority opinion goes in its attempt to dredge up evidence to strengthen the completely impeached testimony of the alibi witnesses is reflected in the following statement:
Their recollection [that of the alibi witnesses] was corroborated by the introduction into evidence of Nathaniel's birth certificate.
Maj. op. at 861 (emphasis added). The reasoning of the majority opinion in this respect proceeds as follows:
1. Witnesses who testified that Williams was with them on November 19, 1974, recalled that the occasion was a birthday party for Nathaniel.
*fn2. Nathaniel's birthday, as proved by his birth certificate, was November 19th.
*fn3. Therefore the birth certificate supports the witnesses' recollection that they were at a party with Williams on November 19th.
The logical fallacy in this syllogistic presentation is that of non sequitur because the conclusion does not really follow from the premises by which it is supposed to be supported. The introduction of the birth certificate only proves that Nathaniel had a birthday on the same day as the bank robbery. It might, at the most, furnish a reason as to why the witness might remember the day, but that does not corroborate that they correctly recall that Williams was present - the critical point - or even that they were present at a party. The logic behind the statement of the majority opinion in this respect is the same as that of the robber who testified he could not have been at the bank when it was robbed because at that time he remembered he was four miles away riding a white horse, and here is the white horse to prove it. Defense lawyers occasionally make this illogical argument to juries but this is the first instance to my knowledge of its acceptance by an appellate court. III
Currency to the amount of $995 positively identified as the proceeds of the robbery was found in the apartment of Williams' sister Gloria. Gloria was the common law wife of the other robber, Wolford, who had previously entered a guilty plea to the crime. Gloria took the stand and stated that her brother did not live in her apartment, and did not frequent her apartment (Tr. 221), but she never went so far as to say he had not been there. In fact, she testified that she "saw very little of him [Williams] around that time [of the robbery]" (Tr. 219-20) (emphasis added), which is an indication that she did see him on some occasions "around that time." With such evidence, and the lack of any evidence that she did not see him, the weight to be given to finding the money in her apartment was for the jury.
The court charged the jury:
Mr. Wolford is not in this case and you should not concern yourselves about Mr. Wolford. Tr. 208.
This was a proper charge because Wolford was not on trial. The defense did not object to this charge. If the defense had wanted a different charge they could have requested it. If the defense considered that the charge was improper the defense could have objected to it; but having failed to do either precludes the court raising the point at this time. Actually, it is an evenly balanced question as to which tack was most beneficial to the defendant. The conviction should not be set aside because the defense chose one route rather than another. Both were detrimental to his case.
But the majority holds that Williams' conviction must be reversed because the evidence of his connection with his sister's apartment was not sufficiently proved to be relevant and "because the jury was not also told that one occupant of the apartment had pleaded guilty to the bank robbery" (Maj. op. at 865). But his sister's statement that she saw "very little" of him "around the time" of the bank robbery, was a sufficient circumstance to establish relevance. As for telling the jury that Wolford had entered a guilty plea to the crime, one cannot imagine anything to which the defense would have a greater objection. If that evidence came in, all the prosecution need do would be to subpoena Wolford as a witness, let the jury see him and compare his physical presence with the picture and then Williams' conviction would be doubly assured. The plea of guilty by Wolford would establish the authenticity of the pictures and Williams' conviction would be practically automatic because of his relations with Wolford and the finding of the money where he lived. Actually more than the "money" had been found in Gloria's apartment. The Government also proffered "positive" testimony from two witnesses, one a former weapons' expert for nineteen years with the Navy (Tr. 211), that a.22 caliber revolver also found in Gloria's apartment (Tr. 109), where Wolford lived, was "identical" to the revolver Williams (not Wolford) used in the bank robbery (Tr. 105, 112-113). When the defense objected to this testimony the court sustained the objection (Tr. 119). The basis for the objection to introducing the gun and the money involved the same claim of prejudice, to wit, that it tied Williams too close to Wolford, who had plead guilty. As Williams' counsel stated:
MR. STILLER: By proving that Mr. Wolford did it, which has been admitted. I find myself between Scylla and Charybdis, because of what is very low relevant evidence, low in relevance -
THE COURT: I think it is very highly relevant.
MR. STILLER: I disagree with the Court. I have to make my objection because I think -
THE COURT: You have made your objection.
. . . .
With this background of Williams' counsel objecting to the gun and the money because they both brought in Wolford, it is hard to see how Williams would not object to telling the jury that Wolford had entered a guilty plea to the bank robbery that involved two robbers. For the court to reverse on this theory is completely fantastic. The defense would never have failed to object to such evidence. The Government had previously agreed not to call Wolford as a witness (Tr. 116), but as the court pointed out the defense could have called him (Tr. 117). The defense objected to calling Wolford :
MR. STILLER: I don't think it is my part that I have to defend someone else's case and prove - I don't have to prove that the defendant didn't do it. That is what I am being put in the position -
Tr. 117. Thus, defense counsel objected to Wolford being injected into the case to that extent and would further object to the jury being told that Wolford has admitted his guilt. Counsel would view the decision of the majority as being adverse to the interests of the defendant - when judges protect defendants' rights in that manner, who needs prosecutors? And the weird decision of the majority is no more acceptable to the Government after the jury returned a guilty verdict without such evidence being introduced. It thus seems that neither party will agree with the decision - truly a remarkable accomplishment. IV There are also a number of incidental points:
When Williams was arrested he gave a false name, "Richard Johnson" (Tr. 180), and insisted that "Richard Johnson" was his name for a considerable period of time (Tr. 180-81). After the robbery he also shaved his head and his mustache (compare Tr. 29, 102 with Tr. 103-104) in an obvious attempt to escape eyewitness identification. Each of these circumstances could be found by the jury to constitute strong evidence of consciousness of guilt.
There is a complete photographic record of the robbery from start to finish -about 170 developed pictures. In keeping with its tactic of poor-mouthing the Government's strong evidence of guilt the majority opinion negatively characterizes the eyewitness identifications:
Only two of the four eye-witnesses who attended line-ups in which Williams was present identified him as the robber.
(Maj. op. at 863, emphasis added). In this manner the majority attempts to inject as a negative factor the fact that some "eyewitnesses" did not identify Williams. What the majority fail to state is that two eyewitnesses did testify to positive identifications (Tr. 91, 103, 143-144, 152-153, 163, 166) and one of the other witnesses who only saw one robber (Tr. 212) focused on his gun and jacket (Tr. 210-211), not his face (Tr. 215) in the few moments before he was compelled to lie on the floor. It is not unusual for some victims in a robbery to be unable to honestly identify all the bank robbers, especially where, as here, following a sudden order from the robbers, the victims quickly lie down on a bank floor, and are unable to get a good view of the robbers. The majority opinion unjustifiably attempts to make a point of the witnesses who did not identify the robbers. That is not viewing the evidence, as an appellate court must, in a manner most favorable to the jury. The jury's verdict indicates that the fact that some victims did not identify Williams, did not detract from the value of the witnesses who were able to identify him positively as one of the robbers. Under long settled limitations on appellate courts it was impermissible for the majority to degrade this evidence.
The defendant objected to the introduction of the gun into evidence because "This is such a strong case" (Tr. 197). The majority opinion characterizes it as a "close case." Maj. op. at 864. This is another example of the tactics used by the majority opinion to incorrectly characterize the strength of the evidence against Williams. The case is only "close" if one takes away the evidence upon which the jury was entitled to rely, and obviously did, and impermissibly whittles it away and misstates its probative value as evidence of guilt. V
The opinion of the court sets aside the verdict of the jury and vacates the judgment of conviction contrary to substantial justice and, even if it were to be admitted that some error had been committed at the trial, it is erroneous to vacate the judgment because the alleged error does not affect the substantial rights of the parties. The applicable Rule provides:
Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
FED. R. CRIM. P. 52(a). This is a reinforcement of the statute:
On the hearing of any appeal . . . the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.
28 U.S.C. § 2111 (1970), 63 Stat. 105 (1949). The Supreme Court in interpreting this same provision stated:
If, upon an examination of the entire record, substantial prejudice does not appear, the error must be regarded as harmless.
Berger v. United States, 295 U.S. 78, 82, 79 L. Ed. 1314, 55 S. Ct. 629 (1935).
The majority opinion throughout also violates the uniformity of our decisions which hold that on appeal from a judgment of conviction in a criminal case the appellate court is required to view the evidence in the light most favorable to the Government making full allowance for the right of the trier of fact to assess the credibility of witnesses and to draw justifiable inference from the evidences. Thompson v. United States, 132 U.S.App.D.C. 38, 405 F.2d 1106 (1968); Crawford v. United States, 126 U.S.App.D.C. 156, 375 F.2d 332 (1967); Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, cert. denied, 331 U.S. 837, 91 L. Ed. 1850, 67 S. Ct. 1511 (1947).
The time has come for this court to confront the fact that it cannot permit panels to disregard FED. R. CRIM. P. 52(a) (supra) and the rule that the evidence on appeal must be considered in the light most favorable to the jury's verdict. This is probably the most basic rule for an appellate court to follow in a criminal appeal. By ignoring the jury's prerogatives, facts are distorted, even-handed justice is denied, judges assert facts on a selective basis and obviously guilty defendants, who were properly convicted, have their convictions reversed and in too many instances because of such reversals are thereafter improperly freed to continue their depredations against society.