United States v. Rodney Sinclair , 444 F.2d 888 ( 1971 )

LEVENTHAL, Circuit Judge:

This is an appeal from a ¡judgment, entered after verdict, of the felony of burglary in the second degree. 22 D.C.Code § 1801(b) (Supp. Ill, 1970). Appellant’s sole complaint is the refusal of the trial judge to give a requested instruction on the lesser offense of unlawful entry, a misdemeanor under 22 D.C.Code § 3102 (1967). We affirm.

I. The Facts

The arresting officers testified that at 8:30 p. m. on April 5, 1968, three persons were seen running from the University Shop, a clothing store located at 1318 G Street, N.W., which had closed for business at 1:30 p. m. because of the widespread disturbances and looting following the assassination of Dr. Martin Luther King. While other officers chased the three persons, Officer Herman Cornish entered the store through a broken showcase window, the front door being locked. He found appellant hiding behind a clothes rack and arrested him as he was trying to sneak away. Appellant’s hands were empty; he was carrying no merchandise; nor was any merchandise piled up in the vicinity where he had been. “[T]he only words that this man said at the time was that he was just doing what everyone else was doing.” (Tr. 17).¹

The trial judge instructed the jury on burglary in the second degree, but denied defense counsel’s request for an instruction as to a lesser included offense. The jury returned a verdict of guilty.

As our opinions make clear, “[i]f counsel ask for a lesser-included-offense instruction, it should be freely given.” Walker v. United States, 135 U.S.App.D.C. 280, 283, 418 F.2d 1116, 1119 (1968); United States v. Huff, 143 U.S.App.D.C. -, 442 F.2d 885 (1971). There must be evidence to support a finding of guilt on the lesser offense. Sparf v. United States, 156 U.S. 51, 63, 15 S.Ct. 273, 39 L.Ed. 343 (1895). This requirement is usually met by sharply conflicting testimony presenting a disputed factual element. See Sansone v. United States, 380 U.S. 343, 349-350, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). It is also satisfied when there is no conflict in testimony but the conclusion as to lesser offense is fairly inferable from the evi- \ dence, including a reconstruction of events gained by accepting the testimony of one or more witnesses only in part. Belton v. United States, 127 U.S.App.D.C. 201, 206, 382 F.2d 150, 155 (1967); United States v. Huff, supra; Driscoll v. United States, 356 F.2d 324, 328-329 (1st Cir. 1966), vacated on other grounds, 390 U.S. 202, 88 S.Ct. 899, 19 L.Ed.2d 1034 (1968).

However, as Belton held, the refusal to give the lesser-included offense instruction is not error when defendant’s testimony is completely exculpatory and, if believed, could only lead to acquittal, and the kind of reconstruction of events needed to support a lesser charge is neither fairly inferable from the testimony nor pointed out by defense trial counsel.

Under these circumstances the request of defense counsel presented no rational basis for a lesser charge, i. e., a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense, United States v. Markis, 352 F.2d 860 (2d Cir. 1965), vacated on other grounds, 387 U.S. 225, 87 S.Ct. 1709, 18 L.Ed.2d 864 (1967). While defense counsel should be given the benefit of the doubt, and all fair inferences should be indulged, in the last analysis, as our decisions have pointed out,² there must be some rational basis for the lesser charge; otherwise it is merely a device for defendant to invoke .the mercy-dispensing prerogative of the jury,³ and that is not by itself a permissible basis to require a lesser-included offense instruction. See Kelly v. United States, 125 U.S.App.D.C. 205, 207, 370 F.2d 227, 229 (1966), cert. denied, 388 U.S. 913, 87 S.Ct. 2127, 18 L.Ed.2d 1355 (1967).

This rule, like so many in the law, requires drawing a line. However the determination of what is fairly inferable from the evidence must be based on reason, calling on the understanding imparted by experience. The jury is instructed that a reasonable doubt is a doubt based on reason and “is not a fanciful doubt nor a whimsical doubt, nor a doubt based on conjecture.” ⁴ While a judge cannot eliminate the prerogative a jury retains to disregard his instruction and to acquit on the basis of conjecture rather than reason, the judge is not required to put the case to the jury on a basis that essentially indulges and even encourages speculations as to bizarre reconstruction. This is the rule of law even though, as we all know, what happens in life is sometimes bizarre, and it may be that on the night of April 5,1968, there was more of the unusual than is ordinary even in Washington. Clearly the record supported as a fair inference that defendant intended to help himself to some clothing, at least if he found some clothing he liked.⁵ The question for the judge was whether there was a reasonable basis on which the jury could find the defendant guilty of unlawful entry beyond a reasonable doubt yet entertain a reasonable doubt whether the defendant entered through a broken store window for the purpose of committing an offense. One can speculate, e. g., that defendant took it upon himself to commit an unlawful entry because he was frightened outside, or because he was curious as to what the others in the store were doing, etc., etc.⁶ But we cannot call on such abstract and speculative possibilities, not rooted in experience or evidence, as requiring the reversal of the ruling declining to give a lesser-included offense instruction.

Affirmed.

1 . Appellant testified that he was driving in his brother’s ear with several friends across town from 7th and O to 14th and M, N.W. He noticed considerable looting and numerous people on the streets and he stopped his car near the University Shop when he noticed “a lot of clothes on the sidewalk and in the street.” (Tr. 54). He got out and started to pick up some things when Officer Cornish approached, asked him who was in the store, and after appellant’s profession of ignorance forced Mm into the store at gunpoint. Inside, appellant was made to lie on the floor, was cursed and hit with a stick, and was then taken out of the store.

2 . See Belton, Huff, Walker, cited above, and authorities cited therein.

3 . Its power to acquit “in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920).

4 . Moore v. United States, 120 U.S.App.D.C. 203, 345 F.2d 97 (1965).

5 . The crime of burglary is established by an unlawful entry accompanied by an intent to steal that is conditional on the location of certain property the offender desires to remove. Glanville Williams, Criminal Law § 23, at 52 (2d ed. 1961); Ali Model Penal Code § 2.02(6) at 14, 129 (Tent.Draft No. 4, 1955).

6 . This kind of speculative possibility as to the intent at time of entry could be hypothesized for any case of housebreaking, even where the actor later takes property and is found with the goods.