Bazelon, Chief Judge, Robb and Wilkey, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeals from the United States District Court for the District of Columbia
In a joint trial, appellants were convicted by a jury of felony murder, armed robbery, and assault with a deadly weapon. They were all denied Youth Corrections Act *fn1 sentences, and received twenty years to life on the murder counts, and lesser, concurrent, sentences for the other convictions. *fn2 We affirm the felony murder and armed robbery convictions, and vacate the assault with a deadly weapon convictions. *fn3 We also reverse Stevens' sentence, and hold in abeyance the contentions of Branic and Baskerville with respect to the trial court's refusal to impose youth sentences. I
The evidence showed that appellants entered a jewelry store, and while Baskerville stood guard, Branic and Stevens forced both proprietors -- one of whom was the seventy-five year old father of the other -- into a back room. Both men were handcuffed and instructed to lie on the floor. The younger man asked if his father could sit on a chair because of his age, but was told to "shut up." Adhesive tape was then wrapped around the victims' mouths. The son was still able to speak, and tried, in Hungarian, to calm his father. In response, one of the robbers removed the tape from the son's mouth, stuffed the son's handkerchief in his mouth, and replaced the tape. Appellants then took approximately $4000 in merchandise and cash.
Shortly after the robbers fled, the younger proprietor ran to a neighboring store for help. He returned to assist his father, but was unable to remove his handcuffs. The police arrived and also attempted unsuccessfully to remove the father's cuffs. During this effort the father became pale and began to perspire. He was pronounced dead on arrival at the hospital.
Appellant's primary argument is that the trial court's instructions on felony murder were deficient in so far as they did not require the jury to find that death was a foreseeable result of appellants' behavior. Relying on People v. Stamp, 2 Cal. App. 3d 203, 82 Cal. Rptr. 598 (Ct. App. 1970), the court instructed the jury that they had to find that appellants committed "an unlawful act which proximately caused th[e] death," and that "the proximate cause of death is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the death, and without which the result would not have occurred."
The D.C. Code felony murder statute requires that a homicide committed during a felony be done "purposely" unless the felony is "arson, rape, mayhem, robbery, or kidnapping," in which case the homicide may be committed "without purpose so to do." 22 D.C. Code § 2401. We have previously *fn4 indicated that by eliminating the element of "purpose" with respect to these five serious felonies, Congress intended to apply the common law felony murder rule to them *fn5 -- that is, that a homicide committed in the course of their perpetration is murder because the "malice" required for murder can be implied from the commission of the felony. *fn6 The doctrine of implied malice obviates the need for the government to prove that death was "foreseeable" when the homicide occurs during any of these five specified felonies. *fn7 Accordingly, nothing in the court's instruction warrants reversal of appellants' convictions.
Appellants Branic and Stevens challenge the admission into evidence of their line-up identifications. We have viewed the pictures of the line-up, and find that the line-up was not suggestive. Relying on Spriggs v. Wilson, 136 U.S. App. D.C. 177, 419 F.2d 759 (1969), and United States v. Allen, 133 U.S. App. D.C. 84, 408 F.2d 1287 (1969), appellants also contend that the line-up identifications were inadmissible because the police refused their counsels' request for any descriptions which had previously been provided by witnesses viewing the line-up. *fn8 We are not in agreement as to whether the police were required to give such identifications. We do agree, however, that the refusal in this case was harmless since the line-up was not suggestive.
Baskerville attacks a tentative ruling by the trial court to the effect that if he testified, the prosecutor might be allowed to impeach him with a prior statement he gave to the police in which he denied participation in the instant offense, admitted committing another robbery, and claimed that Branic and Stevens told him that they had committed the instant offense. *fn9 The trial court diligently tried to keep out evidence of the "other" robbery because of its potentially prejudicial impact, but felt that if Baskerville testified the prior statement might be admissible because the two offenses were so highly related. *fn10 We need not decide -- solely on the basis of speculation as to what appellant might have said -- whether, or to what extent, the prior statement could be admitted since the court's tentative ruling did not influence appellant's decision not to testify. Counsel for Baskerville, at the urging of co-counsel and appellant himself, advised the court that "in view of all the circumstances, it is the consensus . . . that Mr. Baskerville will not take the stand." So far as the record indicates these "circumstances" did not include the court's ruling that the prior statement might be admissible for impeachment. *fn11 II
Appellant Stevens -- who was twenty-one years old at the time of the jury verdict -- was not considered for youth sentencing because he was twenty-two at the time he was sentenced. The Youth Act defines a "youth offender" as "a person under the age of twenty-two at the time of conviction," and defines "conviction" as "the judgment on a verdict or finding of guilty, a plea of guilty, or a plea of nolo contendere." 18 U.S.C. § 5006(e), (h) (emphasis supplied). However, for the reasons given by Judge Youngdahl in United States v. Carter, 225 F. Supp. 566 (D.D.C. 1964), we reject a formalistic reading of the statute and hold that "for purposes of determining whether a defendant qualifies as a 'youth offender,' the time of 'conviction' is the time the verdict is returned or a plea of guilty is taken." Id. at 567. Thus, we remand Stevens' case for resentencing.
Branic and Baskerville claim that the trial court's reasons for denying youth treatment were insufficient. The Supreme Court has granted certiorari in Dorszynski v. United States, 414 U.S. 1091, 38 L. Ed. 2d 548, 94 S. Ct. 721, 42 U.S.L.W. 3352 (1973), to decide whether the sentencing judge need give reasons when he denies youth treatment. *fn12 Sound judicial administration ...