UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, and Wright, McGowan, Tamm, Leventhal, Robinson, MacKinnon and Robb, Circuit Judges, sitting en banc. Bazelon, Chief Judge (dissenting), Wright, Circuit Judge (dissenting).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEVENTHAL
LEVENTHAL, Circuit Judge:
This is an appeal from a judgment entered on convictions of murder in the first degree (homicide while attempting to perpetrate a robbery) and of assault with intent to rob. The principal questions presented for decision are: (1) whether there was sufficient evidence to support the jury's verdicts; (2) whether a knife seized from the person of appellant should have been suppressed as the fruit of an illegal, warrantless arrest; (3) whether appellant should have been permitted to call a witness who had indicated that he would claim his Fifth Amendment privilege against self-in-crimination. We affirm. I. The Sufficiency of the Evidence
Detective Wilson of the Metropolitan Police testified for the Government that in the early hours of the morning of March 14, 1967, responding to a call, he discovered in an alley in the rear of 1423 R Street, N. W., the deceased, Donald W. Ingham, lying face down with blood coming from his mouth and nose. One of the deceased's pants pockets was turned inside out and torn. On the ground near the body were a billfold belonging to the deceased, scattered change, and the keys to deceased's car, parked several blocks away. There was also a wrist identification type bracelet which belonged to the deceased who, it developed, was a serviceman, although clad at this time in dark civilian clothes.
Ingham was pronounced dead on arrival at the hospital at 3:50 a. m. The doctor who performed the autopsy testified that the cause of death was a knife wound in the chest, a wound that could have been inflicted with a hard blow of the knife found on appellant at the time of his arrest.
The chief evidence for the Government, however, was the testimony of Mary Burwell, with whom appellant's mother lived. She said that between 8 and 9 p. m., March 14, appellant came to the apartment, sat on the bed beside his mother, asked whether her nerves were all right, and said he had something to tell her, that he had killed a man, a soldier, in the back of an alley on R Street. She stated that appellant showed them a knife while he was telling them about the event. She was asked if appellant had said why he killed the soldier. She answered, "No, he said he don't like for anyone to put their hands in his face." Other Government testimony established that there were no other killings involving servicemen on March 13 or 14; and that the two other alley killings that weekend were remote in either time or place, and both had been solved.
Although the question is close, we think this evidence was sufficient to place all the charged counts before the jury. Appellant's confession to his mother in the presence of Mary Burwell, together with the circumstances that no other killings of this type had occurred in the vicinity during the time in question, provides a basis from which the jury could conclude that it was appellant who stabbed the deceased.
A more difficult issue, though, is the sufficiency of the proof that when appellant assaulted the deceased he did so with the intent to rob thereby making the killing a felony murder. Sometimes an intent to rob can be inferred from little more than the assault itself. *fn1 Here, however, we have no witness to the assault, and the circumstances of a nighttime fight in an alley with a soldier in civilian clothes are consistent with purposes other than robbery. What provides a legally sufficient foundation for the jury's finding of an intent to rob is that coupled with the assault there was evidence -- the pocket ripped and turned inside out, the billfold discarded nearby, the change scattered about -- that the deceased was robbed. This evidence concerning the appearance of the scene after the assault is probative of attempted robbery and sufficiently narrows the ambiguity residing in the mere fact of assault. *fn2
Counsel argues that someone not involved in the stabbing may have gone through the pockets of the deceased sometime after the killing and before the body was discovered. That is a possibility, *fn3 but we are unable to say that it is a possibility that required the jury to entertain a reasonable doubt as to defendant's purpose. We think the prosecution evidence was sufficient to avoid a verdict directed for defendant at the end of the prosecution's case.
With a starting point, established by plainly adequate evidence, that defendant killed the deceased, the other facts suffice as circumstantial evidence to warrant an inference of the intent of robbery, subject to being negatived by some other explanation by the defendant. He did not provide such explanation, but instead offered defenses which the jury disbelieved: a defense of alibi, coupled with the claim that he had been joking when he told his mother of the killing, and that he had been told by one Raymond Smith that Smith had committed the killing.
We cannot say that on this record that the jury which was morally convinced of his intent to rob must be charged with abdicating reason. II. Validity of Arrest and Seizure of Weapon
This case was set down for argument en banc together with Dorman v. United States, decided April 15, 1970, *fn4 because it too raised the issue of the validity of a warrantless arrest. As with Dorman, we remanded to the District Court for further elaboration of the circumstances surrounding the arrest and analysis of the legal issues involved. We have reviewed the findings of fact and conclusions of law filed by the District Court and conclude that they adequately support the ...