Ronnie E. Matthews v. United States of America, Luther P. Mitchell v. United States , 449 F.2d 985 ( 1971 )

FAHY, Senior Circuit Judge:

Appellants were jointly tried on an indictment for robbery, assault with a dangerous weapon, unauthorized use of a vehicle, and kidnapping.¹ The cases arose out of a robbery of a restaurant on Georgia Avenue in the District of Columbia. Upon verdicts of guilty on all counts, appellant Matthews was sentenced to imprisonment for five to fifteen years for the robbery, three to nine years for the assault, one to three years for the unauthorized use of a vehicle, and five to fifteen years for the kidnapping, the sentences to run concurrently; appellant Mitchell received the same sentences except that he was sentenced to ten to thirty years on the kidnapping count, to be consecutive to his sentences for the other offenses. His sentences accordingly total fifteen to forty-five years, while those of Matthews are five to fifteen years. Except for the kidnapping conviction of Mitchell under 18 U.S.C. § 1201 (1964), we affirm as to both appellants.

I

When the appeals were first submitted we withheld decision pending a remand to the District Court for a hearing to determine whether, under Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), the in-court identifications of appellants at trial were “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to violate due process of law. The hearing was held before the trial judge, followed by his Memorandum carefully reviewing the testimony at both trial and remand hearing, and containing his findings and conclusions. Although photographs had been used in the identification process, see Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), careful consideration was given by the trial judge to this phase of the identifications. The court stated in part:

The record in this case discloses no significant danger of misidentification. Each of the Government’s witnesses had an unimpeded opportunity to observe the defendants during daylight hours for extended periods of time. Neither defendant wore a mask or a disguise of any kind. Testimony about the circumstances surrounding the showing of the photographs produced no hint of any coercion or suggestion by police officers with respect to any witness. The identification testimony of each witness was firm and unequivocal and withstood cross-examination.

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Finally, the circumstances surrounding the offense demonstrate that each of the witnesses who identified Matthews and Mitchell had seen them under circumstances affording an independent basis for their subsequent in-court identifications. Clemons v. United States, [133 U.S.App.D.C. 27, 38, 408 F.2d 1230,] 1241 [(1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969)].

The findings and conclusions of the court are adequately supported by the record. We approve them.

II

Matthews raises a troublesome question whether at trial he was afforded effective assistance of counsel.² He argues, first, that his counsel practically abandoned any cross-examination of adverse witnesses. Appellants were tried together, however, for crimes committed jointly. In all significant respects cross-examination of Government witnesses could be conducted by counsel for either defendant; and counsel for Matthews’ co-defendant did conduct cross-examination in a manner which inured substantially to the benefit of Matthews. This we think afforded effective assistance of counsel insofar as it depended upon cross-examination, at least to a degree sufficient to avoid constitutional error with respect to Matthews.

A difficult question is also presented by the altogether casual summation of Matthews’ counsel to the jury, as indicated in part below.³ We cannot approve such a presentation as fulfilling counsel’s obligation. Under our law a criminal trial is an adversary proceeding. In cases involving an indigent defendant such as Matthews the court appoints counsel to represent the accused as an advocate and he is paid by the Government. Ordinarily counsel ably fulfill

their obligation, with invaluable assistance to the courts. No doubt due to the difficulties he encountered appointed trial counsel for Matthews misconceived his function as an advocate in this case. This we think was constitutional error. Nevertheless, we do not because of it reverse the convictions of Matthews.⁴ The identification of appellants as the offenders was convincing; and there is no question but that the offenses charged to them occurred — except the kidnapping charge against Mitchell subsequently to be considered. When Matthews came into the restaurant at the time of the robbery,⁵ Mitchell introduced him to the manager. The manager testified that Matthews thereupon produced a gun and ordered him to open the safe. After the robbers obtained the money the manager was ordered to accompany them to his car in the parking lot. He was required to drive them a long distance, with Matthews sitting beside him. The manager thus had ample opportunity to observe appellants. In addition, other evidence strongly supported the manager’s identification of Matthews. An officer in Maryland spotted the car as the result of a look-out, followed it, and shortly after the car was abandoned arrested Matthews, whom he identified as the driver. Under the principles laid down by the Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), and considering the argument of counsel for Matthews in the context of the evidence as a whole rather than in its bald abstract form, while the error was constitutional, we find beyond a reasonable doubt that it was harmless.

III

Mitchell contends that his conviction of kidnapping under 18 U.S.C. § 1201 (1964) should be reversed on the ground the evidence was insufficient to sustain the verdict of the jury. We agree.

The federal kidnapping statute provides in pertinent part:

§ 1201. Transportation

(a) Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.⁶

The question is whether the jury could properly convict Mitchell of knowingly having transported the manager into Maryland notwithstanding Mitchell left the car in the District of Columbia. The Government’s theory is that the conviction is sustainable because Mitchell aided and abetted Matthews in the latter’s transportation of the manager into Maryland. While one who aids and abets another in the commission of a crime is responsible as a principal, 22 D.C.Code § 105 (1967), we do not think there was sufficient evidence to sustain the conviction of Mitchell of the federal crime defined in 18 U.S.C. § 1201.

The manager of the restaurant, as we have said, was forcibly taken by the robbers in his own car from the scene of the robbery and required to drive it some distance. He was then told to stop, and did so, whereupon Mitchell left the car with the stolen money, saying to Matthews: “I’ll see you back at the apartment. Take this man and get rid of him. * * *” As required by Matthews the manager then drove out Georgia Avenue, crossed the Maryland state line, went through Silver Spring, Maryland, and beyond, and left the car upon being ordered to do so.

Under the directions given by Mitchell, Matthews could “get rid of him” around the corner or in the next block. There was no suggestion by Mitchell that Matthews was supposed to drive into Maryland for the purpose of disposing of the manager. True, it was possible that Matthews would “get rid of him” in Maryland. But for Mitchell to offend Section 1201 there must be evidence attributing to him a knowing transportation of the manager by Matthews in interstate commerce, not the mere possibility that such transportation would ensue.⁷ The evidence does not enable us to accept the view of our dissenting brother that “[t]he jury could rightly infer Mitchell subjectively contemplated that the victim would not be released by Matthews within the limits of urban Washington.” Due to the lack of evidence that Mitchell associated himself with the venture involving Section 1201- — -the knowing transportation in interstate commerce — by participating in it as something he wished to bring about or sought by his action to make succeed, see United States v. Peoni, 100 F.2d 401, 402 (1938), his conviction for the kidnapping as an aider and abettor we think must be reversed.⁸

Moreover, the instruction to the jury on this phase of the case, set forth in the margin,⁹ did not require the jury, in order to hold Mitchell under the federal statute, to find that he associated himself with a knowing transportation of the manager into Maryland. Assuming the instruction in the abstract to be a correct statement of the law,¹⁰ we find no evidence of intent by Mitchell to associate himself with the federal crime, or that he wished “to bring about” conduct of that character by Matthews. The statement “get rid of him” is insufficient to bear the burden ascribed to it by the verdict, for it does not encompass elements essential to make out the crime.¹¹

The basis for our reversal of Mitchell’s conviction for violating the federal kidnapping statute as an aider and abettor was raised adequately at trial by defense counsel. When the Government rested its case, Mitchell’s counsel moved for a judgment of acquittal on the kidnapping count, arguing, in part, that when Mitchell left the car “there is no question it was in the District of Columbia.” The motion, however, was denied on the basis of aiding and abetting, which we have discussed.

Affirmed, except as to the conviction of Mitchell for violation of 18 U.S.C. § 1201, which is reversed.

1 . 22 D.C.Code §§ 2901, 502, 2204 (1967), and 18 U.S.C. § 1201 (1964), respectively.

2 . Matthews is represented by different counsel on Ms appeal.

3 . His statements to the jury as here set forth pose the problem:

Counsel for the defense — I happen to be Counsel for the defendant Ronnie Matthews — also has his job. I hesitate to say, but I believe I have done it to best of my ability with what I have had to work with, so I will make these few remarks and I will sit down.

Yes, it’s true that the sole question in this case is, to put it colloquially, who done it, or who did it. I wasn’t there. Counsel for the Government wasn’t there. The only ones who claim to have been there were those who testified. I really can’t stand before you and cast aspersions on persons sworn to tell the truth and placed their hands on the Holy Bible. I will leave it for you to decide. It is not for me to decide who is telling the truth.

The missing cousin is an interesting aside in this case. I don’t know anything about the cousin. All I know is what I heard from the witness stand. And if he isn’t here, perhaps you might very well draw whatever inferences you might see fit to draw from the fact that he isn’t here to testify on behalf of his cousin. I really don’t know.

But I will tell you, ladies and gentlemen of the jury, all I ask you to do in this case, without rehashing any of the grisley [sic] and gory details of it, is to fairly and properly discharge your duty, perform your job and arrive at a proper verdict in this case based on only the evidence that you heard in this trial, including the one piece of documentary evidence, and return a fair verdict as far as the defendant Ronnie Matthews is concerned.

4 . For a like reason we do not accept appellant Mitchell’s contention that the ineffective assistance rendered by counsel for Matthews carried over to his prejudice.

5 . This was his second visit; the day before both appellants had breakfast at the restaurant. The waitress who served them on both occasions positively identified them at trial as the men she had seen.

6 . The death sentence provision has been held unconstitutional in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).

7 . Matthews does not contest his kidnapping conviction on the appeal. Indeed, Section 1201 is not limited to kidnappings for pecuniary gain, see United States v. Healy, 376 U.S. 75, 81-82, 84 S.Ct. 553, 11 L.Ed. 2d 527 (1964) ; and there was sufficient evidence otherwise to sustain Matthews’ conviction under the federal kidnapping statute.

8 . That Mitchell could have been convicted of kidnapping under the local offense defined in 22 D.C.Code § 2101 (1967) is irrelevant to consideration of the present issue. The Government must prove the elements of the crime for which a defendant is charged.

9 . The pertinent part of the instruction was as follows:

Now, a person aids or abets another in the commission of a crime if he knowingly associates himself in some way with a criminal venture with the intent to commit the crime, if he participates in it as something he wishes to bring about and seeks by some action of his own to make the venture succeed. Now, some conduct by a defendant of an affirmative character in furtherance of a common criminal design or purpose is necessary, and mere physical presence by a defendant at the time and place of the commission of a crime is not in and of itself sufficient to establish his guilt. But it is not necessary that any specific time or mode of committing the offense shall have been advised or commanded * * * nor is it necessary that in fact there shall have been any direct communication between the actual perpetrator and a defendant.

10 . As Judge Leventhal states, the instruction was couched in the language of Judge Learned Hand in United States v. Peoni, 100 F.2d 401, 402 (1938), which was approved by the Supreme Court in Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949). But as Judge Hand was careful more fully to state:

It will be observed that all these definitions [of an accessory] have nothing whatever to do with the probability that the forbidden result would follow upon the accessory’s conduct; and that they all demand that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used — even the most colorless, “abet”- — carry an implication of purposive attitude towards it.

11 . Tlie instruction given, see note 9 supra, was too generalized adequately to inform the jury in the special circumstances of this case. There was need for explanation of how it might apply to the elements essential to guilt of Mitchell for what Matthews did, that is, the necessity of finding that Mitchell knowingly associated himself in the transportation of the manager in interstate commerce. Without such an explanation we think the jury cannot be said to have inferred beyond a reasonable doubt conduct of Mitchell requisite to his conviction of the federal crime, committed after he had withdrawn and when what he had already done cannot be held to have been within a “purposive attitude” on his part to aid in this other very serious crime possibly carrying a sentence of life imprisonment.