Jurisdictional Statement — Waller v. United States

SUPREME COURT OF THE UNITED STATES

y

December 21,

s

1978 ; DEC 21 1978

- OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

October Term,

no. %78-5928

DEWAYNE WALLER

Appellant,

Vv.

UNITED STATES OF AMERICA

Appellee.

ON APPEAL FROM THE DISTRICT

OF COLUMBIA COURT OF APPEAL

“

JURISDICTIONAL STATEMENT

Wilhelmina Reuben Ccoke

1424 16th Street, N.W.

Suite 404

Washington, D. C. 20036

(Appointed by the District

of Columbia Court of Appeals)

1978

' ——s INDEX

Page

Opinion below = _ > . oo >. _ >. > >. >. . . >. > * _ . 1

Ya" ee 6 ane a es ob ew 8 ee ae we 8 2

Constitutional provisions and

etetutes inweliweg ..«-c«cesevpesvusceee . 2

Statement > . . . . . . 7 . > 2 . . . . . . o/ . 7 . 3

I. THE QUESTIONS ARE SUBSTANTIAL ..... 9

A. Appellant's Right To An Impartial

Jury Was Unconstitutionally

Compromised By A Threat On A

Juror Communicated To An Un-

determined Number of Jurors ees 9

B. Appellant's Conviction Of

First Degree Felony Was Improper

Because 22 D.C. Code 2401 Cannot

Legally Or Constitutionally Support

A First Degree Murder Conviction

On An Aider pt athe Beeie «.- i179

C. Appellant's §S ltaneous

Conviction And Separate

€ Punishment For Both Felony-

Murder And For The Underlying

Felony of Attempted Armed

Roberty Violated The Double

Jeopardy Clause Of The

Pare Se. oe se © 6 6. 6. 20

II. REASONS FOR GRANTING THE APPEAL .... 24

Conclus ion — >. . . * . > >. . >. . J > — . + >. > . >. 2 9

TABLE OF CITATIONS

i in i ti ee ey ee —— —

CASES:

Benton v. Maryland, 395 U.S. 784 (1969) ..... 23

Blockberger v. United States, 284 U.S. 299

. . . . « . . . . > . > . . >. . . >. * . . as 23

~~ accented eth 5

ii

Brown v. Ohio, U.S. (1977), 45 L.W.

June 16, 1977) ee eS ee Se ee ee ae ee en

Callan v. Wilson, 127 U.S. 540 (1888)

Charleston Federal Savings & Loan Ass'n.

v. Alderson, Diy Dee & 6 © 4

Cramp v. Board of Public Instruction of

Orange County, Florida, wae Gees ate

Ex Parte Jewel, 535 S.W.2d 362 (Tex. Cr.

App . . > . . ° . . . . . . >

Furman v. Georgia, 408 U.S. 238, reh. denied,

409 U. ° 972) © - . . . 7 .

Harris v. Oklahoma, V.8. (1977)

(per

curiam), 21 Cr.L. 3211 (June 29, 1977)...

Jordan v. United States, 133 U.S. App. D.C.

’ 0 F's 969) . * -

Kirchman v. United States, 256 U.S. 363

Kordel v. United States, 335 U.S. 345 (1948).

Mattox v. United States, 146 U.S. 140 (1892).

Newton v. State, ___ Md. , 373 A.2d 362

North Carolina v. Pearce, 395 U.S. 711 (1969)

People v. Anderson, 62 Mich. App. 475, 233

. - ) . . . 7 +. °

Prudential Insurance Company _v. Cheek, 259 U.S.

Raley v. State of Ohio, 360 U.S. 423. .

Ronzani v. State, 24 Wis.2d 512, 129 N.W.2d

Page

20,

9

23,

27, 28

28

p> & 8 Piss iv

Page Page

United States v. Rattenni, 480 F.2d 195

Ryan v. United States, 89 U.S. App. D.C. Cir. eat ae 6 8 pie. & Je re. 6 oes 16

328, 191 F.2d 779 (1951) cert. denied,

sub nom. Duncan v. United States, 342 United States v. Sorcey, 151 F.2d 899,

Ue8< 928 (1952) ce . - . ° . - . ” . 7 - . . . 20, 14, 24 t ; S Zé cert. denied, 327 U.8s

7 ena A ene ark ays. ek 6 te 6 ue eee a3

Screws v. United States, 325 U.S. 91 .

(1945). 2 ee ew ee ee ee ee ee eee ee 1D Waller v. United States, __ D.C. App. ,

; No. s Pp Op. uly 5, 1978) . . o 7 o . . l, 25, 27

Sibron v. New York, 392 U.S. 40 (1968). ..... 23

Weems v. United States, 217 U.S. 349

State Ve Jackson, 43 N.J. 148, 203 A.2d Ly ° * “ . is > . é - m ‘ a ‘ - ‘ ‘ 2 m 2 . 19

cert. denied, sub nom. Ravenall v.

New Jersey, 379 U.5. 98 ee aaa er ar ee 16

STATUTORY MATERIALS:

State ex rel Wilkberg v. Henderson, 292 So.2d

5 Cee: Ce Oe ee EO eee ew. United States Constitution:

State v. Thomas, 114 N.J. Super. 360, 276 A.2d peg a a eee passim

391 (19 71) o . - . . _ * . . >. . _ 7 . . . . >. . 23

Sixth Amendment — . . . . >. . . . . . _ i

State v. Thompson, 280 N.C. 202, 185 S.E.2d —

e e . . e e oo . 7 - . . . . ° . ° Ad ° 23, 28 Eighth Amendment. . oo . . . . . + . . . passim

Stewart v. United States, 129 U.S. App. D.C. District of Columbia Code (1973 Ed.):

303. 394 F.2d 776 (1968). oe 8 6 ja fs - 6 €. ao eg 10, 12, 24

§ 22-105. we ee ee ee Pe we 6 8 -6..-6° % 3 17 19

Stone v. United States, 113 F.2d 70 (6th Cir. : ?

1940) er ae bee ke Se i tes ee ee eet a i ee Ae ee 1S, 16 § 22-2401 Rilelrerne vat eo! eo aisetarm ie. @ <% >. 8, i? 18, 19,

ne 22

Turner v. Louisiana, 379 U.S. 466 (1965). .... 12

MISCELLANEOUS :

United States v. Catalano, 231 F.2d 67

Ww Fi Che St & 6k, 6 Oe ee Sees 13 ; Clark and Marshall, CRIMES 46-48 (7th ed.

| 1967 oe . . . ee . . . oe . . . . . . . . . 17

United States ex rel. Wilson v. Essex

She Court, 406 F. Supp. 991 (D.N.J. | Comment, TWICE IN JEOPARDY, 75 Yale L.J.

. . . . 7 . . » . . . . . . . . . . . 18 262, ne 161 (1965). . . . . . ° . . . . ° . . . 23

United States v. Lacher, 134 U.S. 624

e 7 ° . ° . . . . ° . . . ° . . . . . . . 17

United States v. Rakes, 74 F. Supp. 645

DeCe Va. . . . 7 . . . . . . 7 7 . . . 7 15

&AY 4 See

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

DEWAYNE WALLER,

APPELLANT,

V.

UNITED STATES OF AMERICA,

APPELLE.

ON APPEAL FROM THE DISTRICT

OF COLUMBIA COURT OF APPEALS

JURISDICTIONAL STATEMENT

Appellant appeals from the judgment of the

District of Columbia Court of Appeals, entered on July 5,

1978, affirming the judgment of conviction of the Superior

Court of the District of Columbia and submits this

Statement to show that the Supreme Court of the United

States has jurisdiction of the appeal and that substantial

questions are presented.

OPINION BELOW

The opinion of the District of Columbia Court

of Appeals is at __—sD«.C. App. ___, Nos. 10881, Slip Op.,

—__._ A-2d ___ss (July 5, 1978). Copies of the ovinion,

judgment, order denying rehearing en banc, and of the notice

of appeal are attached hereto as Appendix A.

JURISDICTION

This appeal was brought under §11-721 of the

D.C. Code (Supp. Iv, 1971) to set aside the judgment of

conviction entered by the Superior Court of the District

of Columbia. The judgment of the Court of Appeals was

entered on July 5, 1978, and notice of appeal was filed

in that court on November 15, 1978. The jurisdiction

of the Supreme Court to review this decision by direct

appeal is conferred by Title 28, United States Code,

Section 1257(2). The following decisions sustain the

jurisdiction of the Supreme Court to review the judgment

On direct appeal in this case: Charleston Federal Savings

and Loan Association v. Alderson, 324 U.S. 182, 185;

Raley v. State of Ohio, 360 U.S. 423; Cramp v. Board of

Public Instruction of Orange County, Florida, 368 U.S. 278.

This Court's jurisdiction is also invoked under Title 28,

United States Code, Sections 1257(3) and 2103 with respect

to “any other denial of federal right whether or not capable

in itself of being brought here by appeal." The following

cases sustain the Supreme Court's jurisdiction to review

the nonappealable issues here presented: Prudential

Insurance Company v. Cheek, 259 U.S. 530, 547; Mattox v.

United States, 146 U.S. 140; Remmer v. United States, 347

U.S. 22.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Sections 22-2401 and 22-105 (1973 ed.) and

Amendments Fifth, Sixth and Eighth to the Constitution are

set forth in Appendix B hereto.

QUESTIONS PRESENTED :

1. Whether denial of Appellant's motion for

a mistrial where the Government failed to carry the

burden of rebutting the presumption of prejudice arising

from an unauthorized communication with a juror violated

Appellant's right under the Sixth Amendment to the United

States Constitution?

2. Whether Appellant's conviction of frst

degree felony murder was illegal because the inter>re-

tation of 22 D.C. Code 2401, coupled with the aiding and

abetting principle of 22 D.C. Code 105, as employed

by the Court in charging the jury respecting Appellant,

violated Appellant's rights under both the Fifth and

Eighth Amendments to the United States Constitution?

3. Whether Appellant's simultaneous conviction

and separate sentencing for first-degree felony murder |

and the underlying felony of attempted armed robbe-y is

barred by the Double Jeopardy Clause of the Fifth Amendment ?

STATEMENT

PROCEEDINGS BELOW tit

The homicide involved in this case comirred

during the course of an alleged armed robbery and Bull aiy

of an apartment in the District of Columbia on the:

morning of February 19, 1975. The trial began in the”

j r

4 at +

LE ne

3

Superior Court for the District of Columbia on March ll,

1976, and continued to March 15, 1976, at which time the

trial was recessed until March 22, 1976. Proceedings were

resumed on March 22, 1976. On March 25, 1976, the jury

returned its verdict, finding the Appellant Waller guilty

of one count each of felony murder, first degree burglary

while armed, attempted armed robbery, assault with a

dangerous weapon and carrying a pistol without a license,

three counts of armed robbery, and three counts of assault

with intent to commit armed robbery.

On May 1l, 1976, the trial judge imposed the

following sentences upon Appellant: 20 years to life

for felony murder; 20 years to life for burglary in the

first degree while armed; 10 years for attempted armed

robbery; 20 years to life for each of three counts of

armed robbery; 20 years to life for each of three counts

with intent to commit robbery while armed; 3 to 10 years

for assault with a dangerous weapon; and 3 to 10 years

for carrying a pistol without a license. The first two

sentences were ordered to be served consecutively, the

remaining to be served concurrently. On May 12, 1976,

the trial judge corrected the above sentences amending

the original Judgment and Commitment Order to impose

minimum sentences of 15 years where 20 years was originally

ordered, except for the felony murder count.

Trial proceedings in this case were interrupted

for one week. When the proceedings were resumed, the

trial judge advised counsel that, on the iast vay wees

the adjournment, one of the alternate jurors had reported

to him that she had been threatened with respect to

the verdict. (T2, 9.) The court then advised counsel

that the juror had been segregated and separated from the

other members of the jury from the time that she had

arrived that morning and that "if she followed the court's

instructions and if all the other members of the jury

followed the court's instructions between last Monday and

this date, she has not discussed this matter with them

or with anyone else." (T2, 10.) The judge then had

Ms. Gordon brought into court in order to confirm this

assumption.

Ms. Gordon testified that as she was leaving the

courthouse “a guy walked up beside me and stated that ‘you

better not find him guilty'." (T2,11.) Instead of

complying with the instructions that the jury not discuss

the case with anyone and immediately reporting the incident

to the court, Ms. Gordon approached one of the regular

jurors in the case, repreated the threat to her, and potnted

out to her the person who had made the threat. (T2, 11.)

1/ “T" references are to pages of the reporter's trial

transcript docketed on September 14, 1976. The numbers

1, 2, and 3 refer to the transcripts of the following

proceedings: March ll, 1976; March 22, 23, 24, 25,

1976; and May ll, 1976, respectively. Thus, the reference

(Tl, 31) is to page 31 of the transcript of proceedings

on March ll, 1976.

The court then interviewed this second juror,

one Ms. Ferguson, in order to ascertain whether knowledge

of the incident and spread even further among the jury

members. The second juror revealed that in response to

an inguiry by one of the jurors as to Ms. Gordon's absence

that morning, she informed two other members of the jury

that Ms. Gordon had been approached by someone and that

she had advised her to report it. (T2, 16, 17, 18.)

This conversation between Ms. Ferguson and the other

jurors took place within the jury room with all the

jurors present. (T2, 18.) Although Ms. Ferguson could

not identify these two jurors by name, she indicated that

they both occupied seats in the front row of the jury box.

Faced with the evidence that at least four

jurors were aware of the threat, the trial court decided

to conduct a voir dire examination of the remaining

jurors in order to "ascertain the exact extent of the

infestation.” (T2, 22.) The trial court conducted a

very restricted examination of the remaining jurors, simply

asking whether each juror had discussed the case with anyone,

whether the juror could continue to serve as an unbiased

juror, and, at the request of defense counsel, whether

the juror had overheard anyone else discussing the case.

In response to the trial court's inquiries, Only two of the

jurors admitted having heard that one of their members

had been approached. (72, 323, .33.) Significantly, the

two jurors who responded affirmatively were seateé in

the back, not the front row of the jury box. The first

juror testified that there were "“ohs and ahs" among the

jurors about the incident and that "it was really shocking

that it happened,” (T2, 31) and the second juror indicated

that, while no one had attempted to discuss the case with

her, she had “heard a rumor ... that someone had approached

a member of the jury.” (T2, 33.)

Defense counsel for the three co-defendants

moved for a mistrial, pointing out that the court's general

voir dire examination indicated that as many as six jurors,

and perhaps more, were aware of the incident and further,

that at least two may not have responded honestly to the

questions. Thus, counsel argued that the impartiality of

the jury was seriously undermined and, hence, defendants’

constitutional right to a fair trial was in jeopardy.

(T2, 39-43.) Despite these objections, the court denied

defense counsel's motions for mistrial. (T2, 42, 43.)

Late that day, the trial court heard the Government's

motion that Ms. Gordon and Ms. Ferguson be excused from

further service in the case, and granted it with respect

to Ms. Gordon. (T2, 66-67, 75-76.) At that time the

trial court again denied the defendants’ motions for

mistrial. (T2, 75-76.)

Three days later the jury returned a verdict

of guilty on each count charged with respect to each of

the defendants. (T2, 395.)

Appellant Waller commenced this appeal in the

District of Columbia Court of Appeals to review the judg-

ment and sentence of the Superior Court. On appeal

Appellant Waller argued: (1) that a strong presumption

against impartiality was raised by the threat to one of

the jurors, knowledge of which was disseminated to an

undetermined number of jurors, and that the court erred

in denying defense motions for a mistrial where the

government failed to prove the harmlessness of the un-

authorized communication; (2) that Appellant Waller's

conviction of first degree felony murder for a homicide

that he did not personally commit was illegal because

22 D.C. Code 2401 could not legally or const tutionally

support a first degree felony murder conviction on an aider

and abettor basis; and (3) that appellant's separate

punishment for both felony-murder and for the underlying

felony of attempted armed robbery violated the Deuble

Jeopardy provision of the Fifth Amendment.

The Court of Appeals rejected appellant's

contentions and, on July 5, 1978 affirmed the Superior

Court's judgment and sentence. In its opinion the court

concluded that the voir dire examination conducted below

was sufficient to rebut the presumption of prejudice

arising under the circumstances. The court rejected

appellant's contention that §22-2401 D.C. Code was un-

constitutionally ~ague. Finally, the Court rejected appellant's

9 —

after notice to and hearing of the defendant, that such

Double Jeopardy argument, on the grounds that merger was '

i contact with the juror was harmless to the defendant."

not constitutionally required where distinct societal

Remmer v. United States, 347 U.S. 227, 229 (1954).

interests were to be protected by separate statutes and,

(Emphasis added, ) Accord, Mattox v. United States,

separate offenses were tried in a unitary prosecution.

146 U.S. 140, 148-150 (1892).

Rehearing en banc was denied on August 17, 1978.

= While appellant concedes that the pro-

THE QUESTIONS ARE SUBSTANTIAL | cedures utilized to ferret out the possibility of

A. Appellant's Right To An Impartial Jury Was Unconsti- | prejudice remain flexible and within the trial court's

tutionally Compromised By A Threat On A Juror : :

Communicated To An Undetermined Number Of Jurors. discretion, nevertheless, the examination must be so

The Sixth Amendment of the United States Consti- designed as to elicit sufficient information to sustain

tution provides in relevant part that "in all criminal a finding of harmlessness: the court ". . . should

prosecutions, the accused shall enjoy the right to a determine the circumstances, the impact thereof upon the

speedy and public trial, by an impartial jury of the juror, and whether or not it was prejudicial, in a hearing

State and district wherein the crime shall have been . with all interested parties permitted to participate."

committed . . wal Courts, in carrying out this mandate Remmer _v. United States, supra at 230. Accord, Ryan v.

have zealously guarded the accused's right to a trial United States, 89 U.S. App. D.C. 328, 191 F.2d 779, 781

by a jury not contaminated by extrinsic evidence or (1951), cert. denied, sub nom, Duncan v. United States,

external pressure. Thus, the constitutional mandate 342 U.S. 928 (1952); Stewart v. United States, 129 U.S.

is clear: "“[i]n a criminal case, any private communication, App. D.C. 303, 394 F.2d 778, 780 (1968); and "a trial

contact, or tampering, directly or indirectly, with a judge should not hesitate to grant a new trial where there

juror during a trial about the matter pending before the is any significant doubt whether the presumption of

jury is, for obvious reasons, deemed presumptively pre- prejudice has been overcome." Ryan v. United States, supra

judicial;" and while "[tJhe presumption is not conclusive ..., : at 781. These stringent requirements derived from the mandate

the burden rests heavily upon the Government to establish, of the Sixth Amendment were not met in the instant case.

The threat made to an alternate juror and communi-

2/ The Sixth Amendment is directly applicable to criminal cated to an undetermined number of jurors created a

prosecutions in the District of Columbia. See Callan v.

Wilson, 127 U.S. 540 (1888).

. 3/ a

presumption of prejudice which was not refuted by the

trial court's restricted voir dire examination which was

neither sufficiently probing to ascertain the extent of

the prejudice nor sufficiently thorough to confirm the

absence of bias toward the defendants. The court's

determination to conduct the voir dire “in the most innocuous

manner possible, and not to give [the jury] any information

that they don't already have," (T2, 23.) resulted in a

situation in which the questions asked of the jurors

were insufficiently pointed and precise to elicit complete

and responsive answers. As a result, the incident was

probed in caly very general terms and, with one exception,

3/ The record shows that an alternate juror, Ms. Annie D.

Gordon, was approached as she left the courthouse by an

unknown third party who threatened her that a guilty verdict

"had better not be returned in this case." (T2, 9, 11-12.)

Almost immediately thereafter, Ms. Gordon encountered a

fellow juror, Ms. Julia Ferguson, to whom she recounted

the incident, pointing out the departing third party.

Ms. Ferguson, after hearing Ms. Gordon's story, advised

her to return and report the incident to the court. The

judge apparently had no knowledge that Ms. Gordon had

discussed the incident with another juror until the hearing

was reconvened a week later. However, after questioning

her just prior to resuming the hearing, the judge remarked:

"I had assumed that this had gotten no further than Ms. Gordon;

that assumption was incorrect. Now, I want to find out

how much further this infestation has spread." (T2,22.)

In that regard, the record again clearly shows

that the "infestation" had spread. Ms. Ferguson, the juror

with whom Ms. Gordon had contact, did discuss Ms. Gordon's

absence with at least two other jurors, explaining that

"someone said something [to her] Monday, when we were leaving,

and maybe that's the reason." (T2, 17.) Whether more

jurors overheard Ms. Ferguson's remarks and whether more

was said in conjunction with her explanation remain

unanswered, and more importantly, largely unasked questions.

The two jurors to whom Ms. Ferguson admitted relating

Ms. Gordon's story, were both aware that Ms. Gordon ". ..

had been approached." (T2, 31, 33.) It is also clear

first, that ". . . everybody was concerned about [Ms. Gordon's

(cont. on next page)

with no opportunity whatsoever for cross-examination

of the jurors by Appellant's counsel at eeiad.* Other

than the standard inquiry as to a juror's impartiality,

each juror was asked only two questions: first, "Have

you had any discussions, at all, with anyone, with respect

to anything that may have occurred in this case last

Monday?" and second, ". . . have you heard anyone else

discuss it?" (T2, 24-38.) The first question plainly

did not pointedly probe the juror's knowledge of the

specific incident involving Ms. Gordon. The second question

was similarly general and, moreover, could be easily denied

by any individual who was certain that nobody knew he had

overheard the conversations relating to the incident,

particularly if that juror sensed, at the moment questioned,

some duty to protect, not only himself, but also the

offending juror. It will be recalled that all jurors,

when seated, had been charged not to discuss anything re-

lating to the case with anyone.

3/ (continued from previous page) absence)" and second,

that the explanation given -- presumably that she had been

“approached” -- generated "ohs and ahs" and the remark

that it was "[rJeally shocking that [the incident] happened."

(72, Ji.)

4/ The Judge did afford each counsel an opportunity to

examine juror Julia Ferguson. Significantly, it was during

examination by counsel for the various defendants that the

scope of Ms. Ferguson's knowledge of the incident was

learned, as well as the probable number of jurors with

whom she had contact. (T2, 16-19.) This fact merely

serves to underscore the importance of insuring that there

be ". . . full judicial protection of the defendant's

right . . . of cross-examination . . ." Turner v. Louisiana,

379 U.S. 466, 473 (1965); Accord, Jordan v. United States,

Supra; Stewart v. United States, supra.

The trial court's errors of omission are greatly

ote ae ne

compounded by its further failure to ask follow-up

questions where its initial inquiry suggested that a

given juror's response indicated a broader knowledge of

the incident. Thus, it plainly was necessary for the court

to interrogate more fully the jurors who answered that there

were "ohs and ahs" in the jury room and there was a "rumor"

that a fellow member had been approached. The court

instead failed, at that point, to zero in on those

responses in order to insure that it accurately had ascer-

tained the number of people who were in fact knowledgeable

about the isotane.”

The foregoing facts plainly present more than

"mere suspicion and surmise" (cf. United States v. Catélano,

231 F.2d 67, 68 (2nd Cir. 1956), quoting from United

States v. Sorcey, 151 F.2d 899, 903 (7th Cir. 1945),

cert. denied, 327 U.S. 794 (1946). Appellant submits that

these factors combined to deny him a fair trial for the

5/ Significantly, no juror admitted outright discussirg

the case with anyone, even though three jurors and possibly

more did, in fact, discuss Ms. Gordon's absence, due to the

threatening communication. For example, Ms. Gray responded

negatively to the court's question as to whether she

discussed the case with anyone, although a subsequent

response revealed that she had heard that "the girl...

had been approached." (T2, 31.) Again, when queried as

to whether there was further discussion about the incident,

Ms. Gray responded "no, ohs and ahs and that's all."

(T2, 31.) Perhaps the term "discussed" may have implied

a detailed conversation to the jurors since Ms. Godsey

indicated that she had heard a "rumor" concerning the incident,

clearly pointing to evidence of discussion about the incident

among the jurors.

presumption of prejudice was not rebutted by the trial

court's cursory examination of the jurors or by any

evidence submitted by the prosecution, and hence the

Government never met its "heavy burden" of showing the

harmlessness of the threatening remark made, in effect,

to the jury. §_ Indeed, the government's most compelling

argument was not addressed to showing the harmlessness

of the incident's impact on the jury, but instead went

to the judicial inefficiency and the costs of granting

defendants a new trial. Indeed, the prosecuting attorney

admitted that there was a problem, albeit, in his words

a "small" one.

Moreover, the prosecuting attorney's contention

that bias was purely speculative since two of the jurors

could not quote the specific language of the communication

to Ms. Gordon, only that she was "approached," ignored the

fact that the incident had to covey the impression to at

least three jurors that one of their members was being

8/

pressured to act perhaps contrary to her free will.

6/ See T2, 41-42.

7/ Indeed, it is important to note that the court itself

never concluded that the incident was harmless to the

defendants. Instead, based on a superficial and restricted

voir dire, it concluded that the "extent of the problem is

minor, small, and of limited significance, if any." This

was simply insufficient to overcome the presumption of

prejudice,

8/ We note the Government's reliance on the fact that the

trial court did inquire of each juror whether his or her

impartiality had been adversely affected and received

negative answers from each juror. However, as the court

noted in Ryan v. United States, supra at 781, the judge's

conclusions [as to the impartiality of a juror } may not

(cont. on next page)

(T2, 41-42.) As the court so aptly recognized in Stone

v. United States:

Jurors are human and not always conscious

to what extent they are in fact biased or

prejudiced and their inward sentiments

cannot always be ascertained... ,

The whole jury was exposed to, and

actually encountered an outside distur-

bance. Each, except the one approached,

was interrogated in his presence about

outside influences and while no inquiry

can be made as to what occurred while the

jury was deliberating, it takes no more

than an ordinary observation of human

nature to realize the suspicion in the minds

of the jurors that something had happened

extraneously in the course of the trial to

influence their deliberations. 113 F.2d 70,

77 (6th Cir. 1940),

Although the court later excused the alternate

juror (T2, 75), no action was taken with respect to the

juror in whom Ms. Gordon originally confided and who was

sufficiently indiscrete to advise other members of the panel

of the incident. Thus, the jury which convicted Appellant

Waller was comprised of at least three and possibly five

persons who had knowledge of the incident and were thereby

conceivably biased in their deliberation. This probability

is simply acceptable, for as the court pointed out in

Parker v. Gladden, supra at 366, a criminal defendant "is

entitled to be tried by 12, not 9 or even 10, impartial

and unprejudiced jurors."

8/ (continued from previous page) rest entirely upon

e testimony of the juror, because that alone is too

uncertain a bias for resolving the issue of prejudice,"

citing United States v. Rakes, 74 F. Supp. 645 (D.C.

Va. 1947).

The Sixth Amendment mandate of impartiality is

regarded as so important that even where the evidence for

conviction is deemed legally sufficient, "a [defendant]

is nevertheless entitled to a trial which [is] fair and

free from pretrial error. State v. Jackson, supra at

7. For, ". . . the sound administration of justice dictates

that the means as well as the ends be just; [thus], where

serious trial error has determined the proceeding, there

must be reversal without regard to [the court's ]) view as

to guilt." Id. This is so because "{iJn any sound

judicial system it is essential not only that justice be

done but also that it appear to be done." Id., 203

A.2d at 8.7 The requirement of trial by an impartial jury

is not solely for the protection of the criminal defendant

but should be adhered to because of its importance "as

one of the most vital elements in the administration of

justice." Stone v. United States, supra at 77.

The constitutional issues raised by the foregoing

facts were presented in a timely and substantive manner to

the trial court in defense counsels’ motions for a new

erial—” and in secrets Paes to the District of

Columbia Court of Appeals.

9/ See also United States v. Rattenni, 480 F.2d 195,

T98 (2d Cir. : n requiring the retrial of this

count . . . we do not close our eyes to the weighty evidence

presented against appellant which makes us reluctant to

reverse. Nonetheless, the crucial importance of protecting

the integrity of the trial process from such intrusions as

occurred in this case mandates that we not permit the

conviction to stand.")

10/ 2, 40-43,

iA Brief for Appellant filed April 4, 1977 at 1-12

ereinafter App. Br.).

B. Appellant's Conviction Of First Degree Felony Was

Improper Because 22 D.C. Code 2401 Cannot Legally Or

Constitutionally Support A First Degree Murder Con-

viction On An Aider And Abettor Basis.

The Court charged the jury that Appellant Waller

could be convicted of First Degree Felony Murder for a

homicide he did not personally commit,.on an aider and

abettor basis (T2, 358-59). And the jury so convicted

Appellant. 22 D.C. Code 2401 is a very narrowly drawn

felony-murder statute which states, in pertinenet part,

that:

Whoever . . . without purpose so to

do kills another in perpetrating...

robbery . . . is guilty of murder in the

first degree.

The statute, which like all criminal statutes must be

strictly construed against the prosecution and in favor

of Appellant, Kirchmand v. United States, 256 U.S. 363

(1920); United States v. Lacher, 134 U.S. 624 (1890);

Kordel v. United States, 335 U.S. 345 (1948); CLARK AND

MARSHALL, CRIMES 46-48 (7th ed. 1967), transfers or imputes

the requisite intent for first degree murder solely to the

actual killer -- "Whoever... kills" -- in perpetrating

the robbery. It does not purport to transfer or impute

first degree murder intent or any other criminal intent

to the other participants in the underlying robbery.

Concededly, through a common law agency theory,

as embraced by the aider and abettor principle of 22 D.c.

Code 105, Appellant might, in the proper circumstances,

‘ 18

be held criminally responsible for a homicide actually

committed by one of his accomplices during the course of,

and in furtherance of the common purpose of, the underlying

robbery. However, the degree of homicide for which

Appellant could be held criminally liable would be solely

manslaughter, since he would lack the required intent for

first or second degree murder. 22 D.c. Code 2401 does not,

in any plain reading, impute or transfer such requisite

criminal intent, as a matter of law, to anyone other than

the actual killer. and neither does 22 D.C. Code 105.

Even if the transferred or imputed criminal intent

satisfying the first degree murder intent requirement

pursuant to the felony-murder Statute is deemed to be the

intent to commit the underlying robbery, see, e.g.,

United States ex rel. Wilson v. Essex City, Court, 406

F. Supp. 991, 1002, n.5 (D.N.J. 1976), 22 pD.c. Code

2401 only transfers such underlying intent as to the

actual killer, not with regard to other participants in

the underlying felony. While the law of agency -- by

virtue of the aiding and abetting principles of 22 D.C.

Code 105 or otherwise -- can make Appellant criminally

responsible for the acts of his agents, accomplices or

Principals in the robbery -- including the act of the

killing which occurred, i.e., homicide -- nothing in the

doctrines of agency or aiding and abetting would support

imputation of the homicide act to the nonkiller at the

heightened level of first or second degree murder rather

than manslaughter.

In effect, 22 D.C. Code 2401 construed in conjunc-

tion with 22 D.C. Code 105 represents a glaring departure

from the traditional subjective test of criminal liability.

At issue is whether appellant should be convicted of

first degree murder for causing a death which he neither

perpetrated nor intended to cause nor foresaw simply,

because he was a participant in the commission of a felony

without clear and direct statutory specificity and without

the opportunity for any inquiry into intent and therefore

mitigation.

The interpretation of 22 D.C. Code 2401, coupled

with the aiding and abetting principle of 22 D.C. Code

105, as employed by the Court in charging the jury respect-

ing Appellant, violated Appellant's rights under both the

Fifth and Eighth Amendments to the United States Constitu-

tion. The due process clause of the Fifth Amendment

requires that criminal statutes be specific.

See, e.g., Screws v. United States, 325 U.S. 91 (1945).

As applied to Appellant in the case at bar 22 D.C. Code

2401 is void for vagueness. The Eighth Amendment proscribes

cruel and unusual punishments. The sentencing of Appellant

to 20 years to life imprisonment for an alleged violation

of 22 D.C. Code 2401 in the circumstances of this case,

is a punishment of excessive length and severity that

violates the Eighth Amendment. Cf. Weems v. United States,

217 U.S. 349 (1910); Furman v. Georgia, 408 U.S. 238,

reh. denied, 409 U.S. 902 (1972).

Appellant initially raised this statutory

challenge on appeal and the District of Columbia Court

of Appeals upheld the constitutionality of the statutes

12/

as applied to appellant.

C. Appellant's Simultaneous Conviction And Separate

Punishment For Both Felony-Murder And For The

Underlying Felony of Attempted Armed Robbery violated

The Double Jeopardy Clause Of The Fifth Amendment.

The Double Jeopardy Clause of the Fifth Amend-

ment provides that no person shall “be subject for the

same offense to be twice put in jeopardy of life or limb."

The U.S. Supreme Court has affirmed that the Double Jeopardy

Clause pretects not only against multiple prosecutions for

the same offense after conviction or acquittal, but also

against multiple punishments for the same offense.

North Carolina v. Pearce, 395 U.S. 711 (1969). Appellant

Waller was sentenced to twenty years to life on the felony-

murder conviction and three to ten years on the attempted

armed robber conviction. The sentences were concurrent.

Such simultaneous conviction and separate, albeit concurrent,

sentencing for felony-murder and the underlying felony

of attempted armed robbery violate the Double Jeopardy

provision of the Constitution. In Brown v. Ohio,

U.S. (1977).

12/ See App. Br. 13-15 and slip op. at 10-12.

this Court reaffirmed the test enunciated in

Blockburger v. United States, 284 U.S. 299 (1932) as the

appropriate standard for ascertaining whether legal offense

categories are sufficiently distinct to permit the imposi-

13/

tion of cumulative punishment. | Applying the Blockberger

test, this Court concluded that a lesser included

offense merged with the greater offense, and, hence, punish-

ment for both offenses fell within the purview of the

Double Jeopardy Clause:

As is invariable true of a greater and

lesster included offense, the lesser

offense . . . requires no proof beyond

that which is required for conviction

of the greater ... . the greater offense is

therefore, by definition the same for

purposes of double jeopardy as any

lesser offense included in it. At

4699.

The Court concluded that "whatever the sequence may be,

the Fifth Amendment forbids successive prosecution and

cumulative punishment for a greater and lesser included

14/

offense," supra at 4699,

13/ That test emphasized the elements of the offense,

providing:

the applicable rule is that where the

same act or transaction constitutes a

violation of two distinct statutory

provisions, the test to be applied to

determine whether there are two offenses or

only one, is whether each provision requires

proof of a fact which the other does not ....

284 U.S. at 304,

14/ Cf. Harris v. Oklahoma U.S. (1977) (per

curiam), r une 25771977).

The issue presented in this case is whether

felony murder and the underlying felony upon which the

murder conviction was based are to be regarded as the same

offense under these principles. D.C. Code §22-2401,

which defines the offense of first degree murder, requires

either a showing of deliberate intent to take life or

proof that the murder was committed in perpetration of

certain offenses, in the instant case, attempted armed

robbery. Thus, a conviction for first-degree murder, to

be valid, requires proof of premeditation or malice, except

that where the conviction is predicated on the commission

of a felony, by proving every element of the underlying

felony, the element of malice necessary for first-degree

murder is established.

This line of analysis led the Maryland Court of

Appeals in Newton v. State, Md. » 373 A.2d 362

(1977) to reverse its prior decisions in this area and to

hold that separate convictions and sentences for felony

murder and the underlying felony constituted double punish-

ment for the same offense in violation of the Fifth Amend-

ment's Double Jeopardy Clause. The Maryland Court reasoned

that:

+ « « tO secure a conviction for first degree

murder under the felony murder doctrine, the

State is required to prove the underlying

felony and the death occurring in the

perpetration of the felony. The felony is an

essential ingredient of the murder conviction.

The only additional fact necessary to secure

the first degree murder conviction, which is

not necessary to secure a conviction for the

23

iter La Shan Ga Proof of the death The

: re © secure a firs

yah ree is, absent the maw

ms underlyian evidence required to establish

Ony. Therefore a d5 2

Offense requires proof of a fact which “the ‘ia

armed robbery Charge was a necessary element of first-

degree felony murder, and became a lesser included offense

in the greater felony murder Charge, Consequently his

Simultaneous Convictions and separate sentencing for both

Offenses contravened the Double Jeopardy Clause of the

Pifth Amendment, Accordingly the attempted armed

conviction must be reversed,

This Conclusion is in accord with that reached

by several] Other jurisdictions which, applying the Sslock-

berger test, have held that the underlying felony ind the

’

292 .

So.2d 505 (La. 1974); People y. Anderson, 62 Mich

App. 4 .

pp 7S, 233 N.W.2d 620 (1975); State v, Thompson, 28¢

aC, . .

“a

’ ( ); x te JC l,

535 S.w.

W.2d 362 (Tex. cr, App. 1976); Ronzani vy. State

24 Wis.2a 512, 129 N.W. 2d 143 (1964)

double Jeopardy issue, for as the Supreme Court recognized in

Benton v Maryland, 3

: . ’ 95 U.S. 784 790 "tm ee e :

ph = entail adverse collateral beund comemiecne. "s otsOns

TP e _— Possibility Of such collateral consequences

nedhuatien “a to —. the case the "impact of actual:ty'

— y tO make it a justiciable ca s ina

(Citing Sibron v. New York, 392 U.S. 40, 55 tisesy or fee

also

Comment, ice in Jeopardy, 75 YALE L.J. 262, n.l¢eT (1965).

/

24

II. REASONS FOR GRANTING THE APPEAL

The District of Columbia Court of Appeals' refusal

to reverse the challenged convictions for a new trial is in

direct conflict with this Court's decisions construing the

parameters of the Sixth Amendment's mandate of an impartial

jury in all criminal prosecutions and the obligations of the

Government where there is evidence of unauthorized

communications--especially with respect to the verdict--

with the jury. Furthermore, the restricted and limited

voir dire examination conducted by the trial court is

inconsistent with this Court's well-settled directive that

evidence of the harmlessness of the unauthorized communication

Remmer v. United States,

be made to appear on the record.

Supra at 229, Accord, Mattox v. United States, supra at

148-150, Ryan v. United States, 89 U.S. App. D.C. 328, 191

F.2d 779, 781 (1951), cert. denied, sub. nom. Duncan v.

United States, 342 U.S. 928 (1952), Stewart v. United States,

129 U.S. App. D.C. 303, 394 F.2d 778, 780 (1968).

At issue is whether simply conducting a voir dire

examination is sufficient to rebut the presumption of bias

and to avoid the stringent constitutional requirements of

the Sixth Amendment. The court in its opinion responded

to Appellant Waller's contentions in the following manner:

25

First, that more specific questioning created the risk of

enlarging the number of jurors aware of the threat; second,

that the jurors said they could continue to serve impartially;

and, third, that the incident Sub judice was innocuous

compared with more bizzare occurrences in other cases where

mistrials were found to be unwarranted. Waller v. United

States, slip op. at 8.

Appellant Waller submits that these reasons are

insufficient bases for rebutting the presumption of prejudice

on the facts of the instant case. Granted there may be

risks in Providing too much information to jurors and

further tainting the panel, but the purpose of an inquiry

is not simply for form, but to put on the record proof of

impartiality. The fear of further dissemination aid not

excuse the failure to probe further those jurors who spoke

of rumors and other generalized reactions to the incident.

And, the unresolved state of the record as to the number of

cognizant jurors raised questions as to the credibility of

the jurors' response to the question whether they discussed

the case with anyone and also to the credibility of their

affirmations of impartiality. Finally, the court's reliance

on the comparative seriousness of the threat here and <he

incidents in other cases warrants review. In those cases,

26

On the record, there was and could be no misunderstanding of

either what the situation was or that a juror's declaration

of impartiality was responsive to the incident. (Indeed,

in some cases cautionary instructions were given.) Whaet

we have here in this case is a record full of questions on

the issue, and, for this reason, reversible error was

committed when the motions for retrial were denied ana

review is here sought.

Secondly, Appellant seeks review of the ques«ion

of whether his conviction for first degree felony murder

contravened Appellant's rights under the Fifth and Eighth

Amendments to the Constitution where his conviction was

premised on substitution of the mens rea of a lesser

offense for the mens rea of a greater offense in the absence

of a specifically drafted Statute and by a catch-all a.ding

and abetting statute. Thus appellant challenges the over-

breadth of the joint construction of the challenged statutes

as applied to him without the Opportunity for mitigation.

Finally, Appellant respectfully urges this Court

to review the court of appeals rejection of his contenzion

that his simultaneous prosecution and separate punishment

for both felony-murder and for the underlying felony

violated the Double Jeopardy clause of the Fifth Amendment.

27

The court marshalled three basic arguments in rejecting

appellant's contentions. First, citing Blango v. United

States, D.C. App. 373 A.2a 885, 888 (1977), the court

Submitted that “the societal interests served by each

Statute are separate and distinct", thus justifying

separate punishments. Waller, at 1618. Second, following

the reasoning of the first argument, the Court concluded

that the underlying felony is not a lesser included offense.

Finally, the court concluded that in any event because "the

case at bar involves a unitary prosecution [it] present[s]

no Double Jeopardy considerations." At 1621. We submit that

in relying on these reasons the court misapprehended the

controlling principles of Brown and of the Double Jeopardy

clause.

Appellant submits that the decision in Brown,

Supra, brought the doctrine of merger of lesser offenses

within the ambit of the constitutional protections of the

Double Jeopardy clause. Whatever the prior theories justify-

ing nonmerger on the ground of separate societal interests,

the decision in Brown mandated that they be re-examined

against a constitutional imperative. This the court failed

to do. Moreover, the court's argument that because appellant

was sentenced in a unitary prosecution, no Double Jeopardy

28

considerations pertained should be rejected.’ "The U.S.

Supreme Court has affirmed that the Double Jeopardy clause

protects not only against multiple prosecutions for the same

_ Offense after conviction or acquittal, but also against

multiple punishments for the same offense. North Carolina

Vv. Pearce, 395 U.S. 711 (1969)". Accord. Brown Vv. Ohio,

Supra.

Finally, this issue warrants review because the

court's denial of Appellant's Double Jeopardy claims is

in direct conflict with decisions reached in other juris-

dictions. Newton v. State, 373 A. 2d 362 (1977); State ex

rel. Wilkberg v. Henderson, 292 So.2d 505 (La. 1974);

®

People v. Anderson, 62 Mich. App. 475, 233 N.W.2d 620 (1975);

State v. Thompson, 280 N.c. 202, 185 S.E.2d 666 (1972);

State v. Thomas, 114 N.J. Super. 360, 276 A.2d 391 (1971);

Ex Parte Jewel, 535 S.W.2d 362 (Tex. Cr. App. 1976);

Ronzani v. State, 24 Wis.2d 512, 129 N.W.2da 143 (1964).

29

CONCLUSION

For the foregoing reasons, Appellant respectfully

requests that the Court grant this appeal.

Respectfully submitted,

Vethelmun flake Crk

Wilhelmina Reuben Cooke

(Appointed by the District of

Columbia Court of Appeals)

December 21, 1978

APPENDIX A

Frederick J. Sullivan, appointed by this court, for ap-

Pellant Gaskins.

Peter Chatilovicz, appointed by this court for appellant

Patterson, adopted the briefs of appellant Waller, but

did not participate in argument.

appellee,

Before KELLY, KERN and YEAGLEY, Associate Judges.

YEAGLEY, Associate Judge: Or. March 25, 1976,

following a two-week jury trial, a»pellarts were each

found guilty of felony murder, first-d *gree burglary while

armed, attempted armed robbery, three co-ints of armed

robbery, three counts of assault with intent to commit

robbery while armed, and assault With a dangerous

weapon. Appellant Waller alone was found guilty of

carrying a pistol without a license.*

ved concurrent maximum senterces for the remaining

Girard Streets, N.W. At approxima‘cly 2 am., appel-

lants and Channeta Patterson * encountered Robert Reid,

with whom they were not acquainted, and asked him

where they could purchase some drugs. Reid told appel-

lant Patterson that he would make a purchase for them

and instructed appellant Patterson anc his companions to

await his return in their car across the street. Instead,

appellants waited until Reid had entered a nearby build-

ing, and then alighted from the car. Appejlants armed

themselves—appellant Patterson with a sawed-off shot-

gun, appellant Waller with a pistol, and appellant Gaskins

with a knife. The men entered the building and forced

their way into the apartment to which Re:d had gone.

When they announced a robbery, occupant James Granby

started to run. Appellant Waller shot at him and missed

as Granby locked himself in the bathroom. Appellant

Patterson ordered Reid to bring Granby ti him. Reid

complied. Patterson demanded narcotics from Granby,

and when the latter hesitated, hit him on the head with

the butt end of his shotgun. As Gran)y lay on the floor,

semiconscious, Patterson put the shctgun to his chest

and killed him.

Appellants rounded up the remaining eigit occupants

of the apartment, took their money, and departed to the

car in which Patterson’s wife, Channeta, was waiting.

Appellant Patterson was arrested ‘Sve weeks later,

following a photo identification of him. He aad Channeta

Patterson gave statements admitting their involvement

in the offenses and identifying appellan‘s Wailer and Gas-

kins as their coparticipants. Channeta Patterson so tes-

tified at trial. Her testimony was cor-oborated by testi-

* Defendant Channeta Patterson, appellent Patterson's wife,

pleaded guilty to armed robbery and ap pearec as a govern-

ment witness at appellants’ trial.

(1608)

a

mony of five of the victims, at least one of

\ € of whom identi-

0 each appellant. Only appellant Gaskins denied te

nvolvement ; his denial is restated here and is addressed

I

- a Waller and Gaskins contend * that the tria!

= ipso soo reversible error in aenying their motions

a because the government filed to rebut

presumption of prejudice arising from an unautho-

RB ban 15, 1976, following four days of trial, it

i necessary to recess proceedings for one week.

a Bee were leaving the cou.chouse, a man ap-

pe : hewn: — a Gordon ard said “you

bette nd him guilty.” Ms. Gordon told ju

Julia Ferguson what had happened, and the; inatmediatel ‘

reported the incident to the trial court. .

When trial reconvened the followin

§ Morday, the tri

resis. gs gree Ms. Gordon from the other Roce po

on all counsel of the incident. Ms. F erguson was

v : oned a revealed that when Ms. Sordon had failed

ante n Pres jury room that morning, she told two

parting # t “somebody had said sometaing to [Ms.

- Ms. Ferguson said that she had not disclosed

t. It -

firmed that at least two other jurors kad :: iad tee

* Appellan i

ppellant Patterson has received this court's permission

to join in thi j

~ on Oh A. — and in the argument addressed

[1609]

af 6

aware that Ms. Gordon had been approached. The trial

court proceeded to voir dire the entire panel one at a

time, and asked each juror three questions: and every juror’s answers to my questions, and

r%

this case with anyone, my ability to see and view their demeanor, and

PP ie by won cane with you? I find, at this time, that each and every one of

Bian iat those jurors, including the lady tc whor-. that re

(2) Bave you heard anyone else diseu mark was apparently addressed, is able and will.

(8) Do you feel, at this time . . . that you ing to continue in this case, as a fair and im-

may continue to serve as a fair and impartial partial juror. Without any prejudice or with-

juror in this case, without any prejudice or | out any bias, and without any fear.

bias, or without any fear? oan 80, on that basis, the motion for mistrial,

doubt tha: they could respect to each and every one of these

ee + % thag soei ricgge Me ro paling. Boren defendants, will be denied, at this time

Ms. Gordon because she had to be questioned as part It is well settled that

of a police department investigation of the threat, and (i]n a criminal case, any private coramunication,

made the following findings: contact, or tampering, directly or indirec:ly, with

Well, based on my voir dire of each and every 4 Juror during a trial about a matter pending

member of this jury, it’s my determination, at before the jury is . . . deemed presurptively

this time, that the extent of the problem is prejudicial. ... The... burden rests heavily

minor, and small, and of limited significance, if upon the government to establish . . . that such

any. Neither the juror to whom this remark was contact with the juror was harmless to the de-

addressed, nor anyone that she has come in con- fendant.

tact with, has placed undue emphasis on the re- Remmer v. United States, 847 U.S, 207 229 (1954):

mark. Nor, has it substantially affected this accord Mattox v. United States, 146 US. 140 (1892).

juror, or anyone to whom she has spoken. United States v. Burke, 496 F.2d 372 (sch Cir.), cert.

The nature of the problem, othe-wise, is specu- denied, 419 U.S. 966 (1974). Where an unauthorized

lative, at best, in terms of what was said, oe nneation with one or more members of the jury is

by whom, under what circumstances, a.id when. | ae to the trial court's attention during trial, and

I found no occasion on the part of any member bd presumption of prejudice to the defencant is not

of the jury, that they knew precisely, or had a ae the trial court must declare a mistrial. Mattoz

distinct and definite understandirz of what was > mited States, supra; United States v. Nvans, 542

done, or what was said, or by whom, or when, roe 805 (10th Cir. 1976), cert. denies 429 U.S. 1051

or under what circumstances. 1); United States v, Burke, supra; Ryar. v. United

States, 89 U.S.App.D.C. 828, 191 F.2d 779 (1951) cert

[1610] denied, 242 U.S, 928 (1952).

[1611]

Este

was ™ ~= — eee — a — —_—

PE Re ee ee ee ee: >

7

At the same time, appellate courts have long reviewed

such trial court determinations by reference to whether

discretion was abused, Hammond v. United States, D.C.

App., 845 A.2d 140 (1975), and have recognized that

“(t]he question of prejudice [is] one about which [the

trial court is] especially competent to rencer a sound

opinion.” Ryan v. United States, suprc at 331, 191 F.2d

at 782. In examining the soundness of the :rial court’s

opinion, appellate courts have considered particularly im-

portant the inquiry conducted by the trial court on the

question of prejudice. That was our basis f2r affirming

the trial court’s denial of appellant’s :nistriz] motion in

Hammond v. United States, supra. There, appellant’s

father appeared in court inebriated, and was escorted by

a marshal from the courthouse. Appellant then engaged

the marshal in a shouting match, and was p-iysically re-

moved from the courtroom. The jury cbservcd this. The

trial court thereafter called the jurors to the bench in-

dividually to determine if they could reach a fair verdict,

and, satisfied with their affirmative replies, permitted

the trial to continue.

In United States v. Evans, supra, & series of bizarre

incidents triggered the necessity for the tria! court’s in-

quiry of the jury. First, a juror received a ietter signed

in the name of appellant. Then, a bom» threat was re

ceived at the courthouse, of which the jury became aware.

Finally, a defense witness assaulted a juror in the jury

box. Repeated motions for mistrial were denied; the

denials were affirmed on appeal. “The jury was questioned

extensively about the effect of the incident.. They re-

peatedly responded it would have no effect on their im-

partiality.” Id. at 815.

Ryan v. United States, supra, involved a raotion for a

new trial raised because of conversations which had taken

[1612]

Place between the prosecutor and severa) j

vera. jurors duri

> oo In affirming denial of a new trial motion the

= oh Psa yp searching inquiry conducted by

ge tor evidence of bias or orejudi i

ri res support to his negative conclusicn ne this ate

on of partiality.” Jd. at 832, 191 F.2d at ‘783.

In the instant case, the tria]

, int case, court asked the m

of the jury individually whether they could a a

questions did ifi-

ae refer to the incident involving Ms, rato oees

a oe ee did not want to ris}: tainting those

ned unaware that one f thei l

tong 0 eir col-

: gu ad been &pproached, or who had heard rumors

States v. Evang 8u and

’ ‘ Wwe accord some signi 2

ao fact that the unauthorized comzaunication here nes

ot introduce inadmissible evidence to the jury. See

Mattox v. United States supra; Uni ,

480 F.2d 195 (2¢ Cir. 1973) United Sta:es y. Rattenni,

a af fae ee B semcory = a toe in a mistrial. See

tates v. , Supra a 8 Nor -

suaded by the government’s assertion at oraj ‘ae that

—— SO

—

Finally, we repeat the court’s observation in Klose v.

United States, 49 F.2d 177, 181 (8th Cir. 1931):

It is the duty of the trial judge to mairtain the

integrity of trials by jury, and if it appears at

any stage of the trial before verdict that mis-

conduct of any juror or any other person Aas

tainted the panel .. . the trial should be stopped

and a mistrial granted. Yet, it does not follow

that a mistrial should be granted whenever any

evilly disposed person in no way connected with

the parties, attempts to make improper remarks

or advances to a juror... . Such a rule might

preclude bringing any desperate offender to jus-

tice. [Citations omitted.]

We hold that the voir dire examination conducted

below sufficed to ascertain the extent of prejudice flowing

from the unauthorized communication, and that the re-

sponses thereto rebutted the presumption of prejudice

arising under such circumstances. The trial court ac-

cordingly did not abuse its discretion in denying appel-

lants’ motions for a mistrial.’

* Cases on which appellants primarily re!y are factually dis-

tinguishable from the instant case. In Maztor v. United States,

supra, reversal was based on an evidentiary ground and not

because petitioner’s new trial motion had beer. denied. The

Court observed, however, that it would have reversed for im-

proper denial of the new trial motion because the trial court

had refused to consider affidavits of two jurors that the bailiff

had made prejudicial remarks during jury deliberations, and

that a newspaper commenting on the case was brought into

the jury room. In Remmer v. United States, suora, the judge

was informed by a juror that an unnamed person had at-

tempted to bribe him. Remand for coasiderztion of peti-

tioner’s previously denied new trial motion was based on the

trial court’s failure to inform the petitioner that a juror

had been approached, and failure to conduct a hearing on the

matter.

[1614]

10

II

Appellant Waller contends that his conviction of first-

degree felony murder was improper because D.C. Code

1973, § 22-2401* cannot legally support the first-degree

felony murder conviction of an aider and abettor. He

further contends that, insofar as § 22-2401 may be read

to permit such a conviction, it is unconstitutionally vague.

Appellant Waller does not question the sufficiency of

evidence that he aided and abetted the armed robbery

committed by appellant Patterson. He vecognizes that

D.C. Code 1978, § 22-105 holds an aider and abettor re-

sponsible as a principal for all acts committed in further-

ance of or which are the natural and probable conse-

quences of the perpetration of a felony. Harris v. United

States, D.C.App., 877 A.2d 84 (1977); In re D.M.R.,

D.C.App., 878 A.2d 235 (1977). Appellant argues, in

effect, that to convict an aider and abettor of first-degree

felony murder, the government must prove two separate

intents: first, intent to commit the unc erlying felony,

and second, intent to commit the homicide.

In United States v, Branic, 162 U.S.A>p.D.C. 10, 495

F.2d 1066 (1974), the court listed the two elements

requisite for conviction of felony murder. First, the de-

the decedent from which he died. Second, the injury

must have been inflicted in perpetration of a specified

felony. No distinction was made between principals and

aiders and abettors for purposes cf felony murder lia-

bility. Only intent to commit the underlying felony need

* Section 22-2401 states in pertinent part:

Whoever . . . without purpose to do so kills another in

perpetrating ... robbery... is zuil f j

wp ee, guilty of murder in the

(1615)

11 | aay 12

be proved. Similarly, in United States v. Heinlein, 160 nok

U.S.App.D.C. 157, 167, 490 F.2d 725, 785 (1978), the | take into sates both general enough t,

court observed: account @ variety of h

Accomplices . . . are exposed to jirst degree Guct and sufficiently specisie to provide 0

p coe expos gre warning that certain ki 9 provide fair

murder accountability by reason of the aiding prohibited NCS of conduct are

onus Sat mse a ee In the case at bar, appellant W.

th art of th joes li * that f tent i ally claim to have been unaw og ee i

on the part of the accomplice; that intent is sup- result in one of the man are that his conduct.

plied by the fact of participation in the felony posed upon him: een ons whic was ultimately im.

giving rise to the killing. [Emphasis added.] rendicen at §20-0001 iene for first-degree murder, 4

These cases are fatal to appellant Waller’s argument; Sonably compels that ene nJunction with § 22-195 rea-

indeed, he offers no authority in opposition. With re- Plifies the Point. His scnthation Frege case law am.

? ony murder ig

spect to appellant Waller’s assertion that § 22-2401 is

unconstitutionally vague, we reiterate our discussion in UI

Leiss v. United States, D.C.App., 864 A.2d 8C3, 806-07 Appellant Wall

(1976), in which we rejected the same argument raised 1s, er Contends that th

in connection with D.C. Code 1973, § 22-5102, the unlaw- 7 Prohibits his simultaneous Reino ing arp

ful entry statute: a ja oo for both felony rurder and: for ne

Moreover, the statute is not subject to the gues iat ile han attempted armed robbery.* He ar.

criticism that its prohibitions are phrased in murder conyj underlying felony merges into the fe]

“ : viction. *elony

such imprecise language as to be beyond the com- Merger of ¢

prehension of those seeking to conform the r be- 7 r of two offenses is ordinari]

havior to its mandate. The type of conduc: sub- ee lesser offense consists entirely a pln gong when

ject to its sanctions is clearly identified in words Dene of the greater offens>, Blockbur

of common understanding, with little room for ; uae States, 284 U.S. 299, 804 (1982) ; Hall a, "

misinterpretation or conjecture. With respect » D.C.App., 843 A.2d 85, 38-39 (1975) Th wa

to this aspect of appellant’s claim of vagueness, "We reject > oh, oP

we note the Supreme Court’s views as expressed his 20 year cm aPpella:t Walier’s contention that

in Colton v. Kentucky, 407 U.S. 194, 110, 92° unusual punishment Ser ben felony raurder is crue] and

S.Ct. 1953, 1957, 82 L.Ed.2d 584 (1972): (1977); Gregg v, Georgia, 428 US a pa X va 432 U.S. 282

The root of the vagueness doctrine is a * It is immaterial to this analysis that a te

rough idea of fairness. It is not a principle von concurrently for conviction Pe Waller was

designed to convert into a constitutioral di- in a eae hs ? oe in error, we are bound tern

lemma the practical difficulties in drawing th collateral conseque '

[1616 * conviction. Benton v. Maryland, S09 Us. 184 (1989) a

] [1617]

App., 824 A2d 688 (1974) ; Quick v. United States, DiC

App., 816 A2d 875 (1974).

utes under consideration, Hail v, United States, supra ;*

cf. Williams v, Oklahoma, 358 US. 576 ( 1959).

Shortly after our decision in Hall, we affirmed separate

convictions for felony murder (burglary) and Arst-degree

burglary, holding that “the societal interests served by

each statute are separate and distinct.” Blango v. United

States, D.C.App., 878 A.2d 885, 888 (1977). In further

explaining this rationale, we observed subsequently that

and that conviction of the former did not merge into conviction

of the latter. We noted that

the interests Protected by the two statutes are widely dis-

parate. The crime of obstructing justice is societa) in

tem frost intended to insulate the criminal josie

from

Protect

citizens. [/d. at 89.)

See United States v, Butler, 149 U.S.App.D.c. 800, 462 F.2d

1195 (1972) (consecutive sentences for murder, tousebreak-

’ . United

App.D.C. 17, 890 482 (1967) (en banc) (consecutive

sentences for housebreaking and robbery upheld), in both

of which the United States Court of Appeals noted the differ-

ent societal interests Protected by each statute.

| [1618]

14

“the societa] interest served by the burglery statute, pro-

tection of occupied dwellings, is Separate and distinct

from that of the murder statute, Security and value of

the person,” Harris v. United Stctes, supra at 38.

We find Persuasive the analysis of then Chief Judge

Bazelon in his Statement as to why he would grant re-

hearing en banc in United States v. Greene, 160 US.

At common law, homicides Were divided into two

categories, murder and manslaughter, with mur-

der requiring a showing of “malice.” Any homi-

homicides were further subdivided by statute

into first degree murder, second degree murder

and manslaughter, the doctrine of felony murder

Was preserved, and the underlying felony was

Viewed as providing the “premeditation” and

“deliberation” otherwise required for first de-

gree murder; as wel] 88 malice, where »,

against homicide

homicide might be second degree murder or man-

slaughter, [Jd. at 44-45, 489 Fog at 1168-69

|

(1619)

15

We believe that while the underlying felony, here at-

tempted armed robbery, is an element of felony murder,

its principal function is as an intent divining mechanism.

It permits the jury to infer the state of mind requisite

for conviction of murder in the first degree. As such, it

is not a lesser included offense of felony murder. We can-

not, moreover, accept a construction of law the effect of

which would be to render the underlying felony a nullity

any time death occurred during ‘ts perpetration. Congress

enacted two separate statutes to protect two separate

societal interests, and acceptance of appellant Waller’s

contention would comport with neither congressional in-

tent nor common sense.

Finally, appellant Waller’s reliance on Brown v. Ohio,

482 U.S. 161 (1977), is misplaced. There, the Court re-

Stated the well settled lesser included offense rule that

where the same act violates two statutory provisions, the

test to be applied to determine whether there are two

offenses is whether each provision requires proof of a fact

which the other does not, Jd. at 166, citing Blockburger

v. United States, 284 U.S. 299, 804 (1982). In the case

at bar, we are not presented with one act violating two

distinct statutory provisions, We instead examine two

acts—attempted armed robbery, and homicid»—and the

only connection between them is that commission of the

former permits a finding of intent requisite to convict of

the latter in the first degree.” Appellant Waller’s con-

* Nor does appellant Waller find support in Harris v. Okla-

homa, 97 S. Ct. 2912 (1977). There, Harris was convicted

of felony murder (robbery). Thereafter, the state sought

and obtained Harris’ conviction for the underlying felony. The

Supreme Court reversed the second conviction, and observed:

Where, as here, conviction for a greater crime, mur-

der, cannot be had without conviction for the lesser crime,

rebbery with firearms, the Double Jecpardy Clause bars

[1620}

16

_ Vietion and concurrent sentence for attempted armed rob-

bery is affirmed.”

IV

Appellant Gaskins contends that the trial court abused

its discretion in limiting his cross-examination of three

government identification witnesses.

On direct examination, witness Robert Reid identified

appellants Waller and Patterson as two of the perpetra-

prosecution for the lesser crime after conviction for the

greater one. [Jd. at 2918 (emphasis added) a}

Harris turned on Double Jeopariy principles; petitioner

had already been put in jeopardy for the robbery he had

in a subsequent proceeding. The case at bar involves a uni-

tary prosecution, presenting no Double Jeopardy considers-

tions. We find the cases distinguishable on this basis.

“We similarly reject appellant Waller’s assignment of

error to the trial court’s alleged failure to specifically instruct

the jury that intent is an essential] element of assault, where

one is charged with assault with intent to commit robbery

while armed. He failed to object below, thus resolution of this

Examination of the court’s instruction, which mirrored Die

trict of Columbia Bar Association, Crimina] Jury Instructions

for the District of Columbia, No. 4.13 (2d ed. 1972), leads

us to conclude that no error was committed, plain or other

(1621)

17

this’ point, expressing the view that witness Reid’s de-

' scription of the unnamed third assailant bore no relation

to his testimony on direct examination.

The same thing happened with respect to government

identified only appellants Waller and Patterson, and each

of whom was asked nothing about a third assailant. Ap-

Appellant Gaskins asserts that he was thus denied his

Sixth Amendment right to confront witnesses against him.

He argues that witnesses Reid, Williams and Mack’s in-

examination, because although this testimony referred

specifically to his codefendants only, it had the effect of

implicating all three defendants jointly.

In Smith v. United States, D.C.App., 830 A2d 519

best appellant, charged with burgiary and armed

court prohibited this, and we held that the tria) court had

not abused its discretion in doing so. 7

The general rule in this jurisdiction is that it

is proper to permit upon cross-examination the

bringing out of anything tending tc contradict,

modify, or explain the testimony given by a wit-

ness on his direct examination .. . . But, while

[1622]

18

cross examination is a basic right, it is subject to

reasonable regulation by the court in the interest

of an orderly and expeditious trial. (Id. at 520

(citations omitted) .]

In United States v. Stamp, 147 U.S.App.D.C. 840, 458

F.2d 759 (1971), cert. denied, 406 U.S. 975 (1972), the

court observed that

it is the trial judge’s duty to see that the evi-

dence is presented to the jury in as orderly and

intelligible a manner as possible. To accomplish

these ends the trial judge in limiting cross-

examination must necessarily be entrusted with

& great degree of discretion. [IJd. at 354, 458

F.2d at 778, citing, ¢.g., Baker v. United States,

131 U.S.App.D.C. 7, 401 F.2d 958 (1948) ; ef.

Springer v. United States, D.C.App., —— A.2d

—— (No. 11958, June 6, 1978).]

In the instant case, appellant Gaskins sought neither

to contradict nor to modify the testimony of the three

government identification witnesses. At most, it can be

said, by resort to liberal interpretation, that he sought

to explain; to apprise the jury that the witnesses had

implicated only his codefendants and had provided pre-

trial descriptions exculpating him. Balancec against this

was the trial court’s duty to ensure orderly presentation

of evidence. We note that in limiting cross-examination

here, the trial court did not preclude appellant Gaskins

from calling witnesses Reid, Williams and Mack in his

case-in-chief.* Appellant Gaskins’ fa‘lure to do so is in-

“ Appellant Gaskins’ reliance on Chambers v. Mississippi,

410 U.S. 284 (19738) is misplaced. There, petitioner was tried

for murder, and called as a witness one McDonald, who had

made, but later repudiated, a written corfessior to the killing.

McDonald had also on three occasions orally admitted com-

(1623)

— rr rn eres ee ee

ee o

19

consistent with his instant assertions of prejudice." We

find no abuse of the trial court’s discretion.”

Appellants’ convictions are

Affirmed.

mitting the murder for which petitioner was on trial. At trial,

petitioner was prohibited from cross-examining McDonald by

Mississippi’s common law voucher rule, which proscribed im-

peachment of one’s own witnesses. Petitioner was held to

vouch for McDonald’s credibility, and was stuck with the

latter’s responses to his questions. The Court reversed, hold-

ing that application of the voucher rule deried petitioner

a fair trial. There, cross-examination:-had been cut off in

limine, on the issue of McDonald’s credibility. In the instant

case, appellant was denied only the opportunity to cross-

examine government witnesses on a topic not discussed on

direct examination.

* Appellant Gaskins contends that he was prejudiced by

the trial court’s allegedly erroneous restriction of cross-

examination because he was positively identificd by only one

of the eight surviving victims of the crime, witness Lena M.

Hunter. This assertion ignores the fact that appellant Gaskins

was implicated prior to trial by appellant Patterson, and at

trial by Channeta Patterson (see note 2, supra). It ignores

also the testimony of Metropolitan Police Detective Otis

Fickling, who told the jury that appellant Gaskins had been

hiding at the time of his apprehension, and who recalled that

after having been advised of his rights and informed that two

other subjects had been arrested, appellant Gaskins replied,

“there was [sic] more than three people involved in this

homicide. That shows you what you know about your case.”

** Appellant Patterson contends individually, and without

citation to any authority, that the trial court erred in failing,

sua sponte, to find him incompetent to stand <rial. We have

examined this contention and find it entirely without merit.

[1624]

—_—_— were ee eee

ee me eee ~”

ne ee ee ee EE Se ce EE | saan Ke

—

District of Columbia DISTRICT OF comuBiA

Court of Appeals | St sans

LED Aug2 v1979

No. 10881

Clerk

DEWAYNE WALLER

Appellant

Vv. 46393-75

UNITED STATES

Appellee

BEFORE: Newman, Chief Judge; Kelly, Kern,

Gallagher, Nebeker, Yeagley, Harris, Mack

and Ferren, Associate Judges

On consideration of appellant's petition for

rehearing en banc and it appearing that no judge of

this Court has called for a vote thereon, it is

ORDERED that the en banc petition is denied.

PER CURIAM

FOR THE COURT:

GEORGE \m. adds :

Acting Chief Judge

Copies to:

Honorable Eugene N. Hamilton

Judge, Superior Court of the District of Columbia

Clerk, Superior Court of the District of Columbia

Wilhelmenia R. Cooke, Esquire

1914 Sunderland Place, N.W.

Washington, D.C. 20036

John A. Terry, Esquire

Assistant U.S. Attorney

jar

Sante SRS ERA RiP i

QESTRNCT OF COLUMBIA

@OUaT GF APPLALS

promace éF ecaen = wOV Lo 9878

COURT OF APPEALS

Uy rd Some

Clerk

DEWAYNE WALLER,

Appellant,

Vv. Case No. 10881

UNITED STATES OF AMERICA,

Appellee.

TORR TE ET

NOTICE OF APPEAL TO THE SUPREME

COURT OF THE UNITED STATES

Notice is hereby given that Dewayne Waller, the

appellant above-named, hereby appeals to the Supreme Court

of the United States from the final order of the District

of Columbia Court of Appeals, affirming the judgment of

conviction, judgment entered July 5, 1978, rehearing

denied on August 17, 1978.

This appeal is taken pursuant to 28 U.S.C. § 1257

(2) and (3).

WILHELMINA REUBEN COOKE

By:

Counsel for Appellant

Court Appointed by the

District of Columbia

Court of Appeals

November 15, 1978

_ CERTIFICATE OF SERVICE

I hereby certify that I have served the foregoing

"Notice of Appeal to the Supreme Court of the United States”

this 15th day of November, 1978, by depositing copies thereof

in the United States mail, postage prepaid and addressed to:

Solicitor General of the United

States

Department of Justice

Washington, D.C. 20530

John A. Terry, Esquire

Assistant U.S. Attorney

United States District Court

Constitution Avenue and John

Marshall Place, N.W.

Washington, D.C. 20011

Attorney for Appellee

Peter Chatilovicz, Esquire

1815 H Street, N.W.

Washington, D.C. 20006

Prederick H. Sullivan, Esquire

Presidential Building

6525 Belcrest Road

Suite 202

Hyattsville, Maryland 20782

Attorney for Co-appellants

I further certify that all parties required to be

served have been served.

Witheimina Reuben Cooke

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

NO.

DEWAYNE WALLER, APPELLANT

ve

UNITED STATES OF AMERICA, APPELLEE

CERTIFICATE OF SERVICE

I hereby certify that I have served the foregoing

"Application for Extension of Time to Docket Appeal” this

15th day of November, 1978, by depositing copies thereof

in the United States mail, postage prepaid and addressed to:

Solicitor General of the United

States

Department of Justice

Washington, D.C. 20530

John A. Terry, Esquire

Assistant U.S. Attorney

United States District Court

Constitution Avenue and John

Marshall Place, N.W.

Washington, D.C. 20011

Attorney for Appellee

Peter Chatilovicz, Esquire

1815 H Street, N.W.

Washington, D.C. 20006

Frederick H. Sullivan, Esquire

Presidential Building

6525 Belcrest Road

Suite 202

Hyattsville, Maryland 20782

Attorneys for Co-appellants

I further certify that all parties required to be

served have been served.

APPENDIX B

ee

United States Constitution: Fifth Amendment

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment of

a Grand Jury, except in cases arising in

the land or naval forces, or in the

Militia, when in actual service in time

of War or public danger; nor shall any

person be subject for the same offense

to be twice put in jeopardy of life or

limb; nor shall be compelled in any

criminal case to be a witness against

himself, nor be deprived of life,

! liberty, or property, without due process

| of law; nor shall private property be

taken for public use, without just

| compensation.

United States Constitution: Sixth Amendment

In all criminal prosecutions, the

accused shall enjoy the right to a speedy

i and public trial, by an impartial jury

| of the State and district wherein the

crime shall have been committed, which

district shall have been previously

| ascertained by law, and to be informed

of the nature and cause of the

accusation; to be confronted with the

witnesses against him; to have compulsory

process for obtaining witnesses in his

favor, and to have the Assistance of

| Counsel for his defense.

United States Constitution: Eighth Amendment

Excessive bail shall not be required,

nor excessive fines imposed, nor cruel

and unusual punishments inflicted.

D.C. Code § 22-105. Persons advising, inciting, or conniving

at criminal offense to be charged as principals.

| In prosecutions for any criminal

offense all persons advising, inciting,

or conniving at the offense, or aiding

or abetting the principal offender, shall

be charged as principals and not as

accessories, the intent of this section

being that as to all accessories before

the fact the law heretofore applicable

in cases of misdemeanor only shall apply

to all crimes, whatever the punishment

may be.

D.C. § 22-501.

Assault with intent to kill, cob, rape or

poison.

Every person convicted of any assault

with intent to kill or to commit rape,

or to commit robbery, or mingling poison

with food, drink, or medicine with intent

to kill, or wilfully poisoning any well,

spring, or cistern of water, shall be

sentenced to imprisonment for not less

than two years or more than fifteen

years.

D.C. Code § 22-2401. Murder in the first degree -- purposeful

i killing

-- killing while perpetrating certain crimes.

Whoever, being of sound memory and

discretion, kills another purposely,

either of deliberate and premeditated

malice or by means of poison, or in

perpetrating or attempting to perpetrate

any offense punishable by imprisonment

in the penitentiary, or without purpose

so to do kills another in perpetrating

or in attempting to perpetrate any arson,

as defined in section 22-401 or 22-402,

rape, mayhem, robbery, or kidnapping, or

in perpetrating or attempting to

perpetrate any housebreaking while armed

with or using a dangerous weapon, is

guilty of murder in the first degree.

pisTRicT OF COLUMBIA

QouaT OF APPEALS

IN THE ’

DISTRICT OF ee D. wuv Lo 1978

COURT OF APPEALS

DEWAYNE WALLER, _ Clerk

Appellant,

Vv. Case No. 10881

UNITED STATES OF AMERICA,

Appellee.

NOTICE OF APPEAL TO THE SUPREME

COURT OF THE UNITED STATES

Notice is hereby given that Dewayne Waller, the

appellant above-named, hereby appeals to the Supreme Court

of the United States from the final order of the District

of Columbia Court of Appeals, affirming the judgment of

conviction, judgment entered July 5, 1978, rehearing

denied on August 17, 1978.

‘This appeal is taken pursuant to 28 U.S.C. § 1257

(2) and (3). om :

! WILHELMINA Rouce. COCKE

By:

te pores ot, yee!

Counsel for Appellant

Court Appointed by the

District of Columbia

Court of Appeals

November 15, 1978

CERTIFICATE OF SERVICE

I hereby certify that I have served the foregoing

"Notice of Appeal to the Supreme Court of the United States”

this 15th day of November, 1978, by depositing copies thereof

in the United States mail, postage prepaid and addressed to:

Solicitor General of the United

States

Department of Justice

Washington, D.C. 20530

John A. Terry, Esquire

Assistant U.S. Attorney

United States District Court

Constitution Avenue and John

Marshall Place, N.W.

Washington, D.C. 20011

Attorney for Appellee

Peter Chatilovicz, Esquire

1815 H Street, N.W.

Washington, D.C. 20006

Frederick H. Sullivan, Esquire

Presidential Building

6525 Belcrest Road

Suite 202

Hyattsville, Maryland 20782

Attorney for Co-appellants

I further certify that all parties required to be

served have been served.

WitheImina Reuben Cooke