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09/13/91 JOHN E. JOSEPH v. UNITED STATES

September 13, 1991

JOHN E. JOSEPH, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Harold L. Cushenberry, Jr., Trial Judge

Terry and Steadman, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Terry

Appellant Joseph was indicted on charges of assault with intent to kill while armed *fn1 and carrying a pistol without a license. *fn2 After a jury trial, he was convicted of assault with a dangerous weapon *fn3 (as a lesser included offense of assault with intent to kill while armed) and carrying a pistol without a license. *fn4 On appeal Joseph contends that the government constructively amended the first count of the indictment in such a way that he was convicted of an offense with which he had not been charged by the grand jury. He also argues that the trial court erred in denying his motion for new trial based on claims of ineffective assistance of counsel and newly discovered evidence. We agree that there was a constructive amendment, but we find it harmless because it did not relate to the offense of which the jury actually found Joseph guilty. We find no other error, and accordingly we affirm the judgment of conviction.

I

The evidence at trial established that on October 21, 1986, shortly after midnight, a gunfight occurred at the Baseball Club, *fn5 a bar on Eleventh Street, N.W. A few minutes earlier, appellant Joseph and Anthony Dickey, both of whom were seen with guns in the club that night, became embroiled in a heated argument. Joseph threatened to kill Dickey, *fn6 pulled out a gun, and told everyone to "get out." The other customers quickly fled. Dickey also started to leave, but just as he went out the door, Joseph fired a shot at him from inside the club. Dickey fell wounded in the front yard of a nearby church. As Joseph kept shooting, bullets from his gun struck Pamela Swann and then James Richardson, both of whom were just outside the front door. *fn7 At the same time, Morris Yarborough fired a gun toward the club from the outside. Both Joseph and Yarborough were wounded in the melee, along with Richardson, Swann, and Dickey. Richardson's injuries, however, were the most serious; one of the two bullets that hit him left him a paraplegic. The police found a total of nine empty shells at various places inside and outside the club.

The first count of the indictment read as follows:

On or about October 21, 1986, within the District of Columbia, John E. Joseph, while armed with and having readily available a pistol, assaulted another with the intent to kill him.

While there were multiple victims and the indictment charged only one assault without naming a victim, defense counsel did not request a bill of particulars before trial because the prosecutor had told her that the case would be tried as an assault on James Richardson with the intent to kill Anthony Dickey, on a theory of transferred intent. *fn8 Richardson, the most seriously wounded of the victims, would be the sole complainant. *fn9 At trial the government did indeed present evidence tending to prove an assault on Richardson with the intent to kill Dickey.

After the close of all the evidence, the trial court sua sponte raised a question about the unusual wording of the indictment -- i.e., its failure to name a specific victim -- and its effect on the jury instructions:

And here is my Fifth Amendment problem. If I simply put in the names of complainants, that is, instruct them as a matter of law that they must . . . find beyond a reasonable doubt that with respect to Mr. Joseph, did he have the specific intent to kill Mr. Anthony , or the specific intent to kill Mr. Richardson, or specific intent to kill Pamela -- Ms. Swann, it seems to me that I am coming fairly close to invading the province of the grand jury. Because I don't know on what theory the government presented these cases and whether or not the grand jury, in fact, thought those victims were the ones whom Mr. Joseph intended to kill, or they found the probable cause to believe it was one of those enumerated victims.

After further Discussion with counsel, the court decided to deal with the ambiguous nature of the indictment in its instructions to the jury. The court later charged the jury as follows:

The offense of assault with intent to kill armed . . . necessarily includes the lesser offense of assault with a dangerous weapon.

You should first consider whether or not the defendant in this case, Mr. Joseph, is guilty of a greater offense, that is, of assault with intent to kill while armed. That is the . . . assault on Mr. James Richardson with the specific intent to kill Mr. Dickey. That's the greater offense.

If you find that the government has not proven each and every element of the greater offense . . . then and only then, you are to then go on and separately consider whether or not the defendant is guilty of the lesser offense of assault with a dangerous weapon, the elements of which I have already defined to you. [Emphasis added.]

The jury found Joseph guilty of assault with a dangerous weapon and carrying a pistol without a license.

II

The Grand Jury Clause of the Fifth Amendment states: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." To safeguard this right, the courts have held that an indictment must provide every defendant with three basic protections. "First, it must apprise the accused of the charges against him so that he may adequately prepare his defense, and second, it must describe the crime with sufficient specificity to enable him to protect against future jeopardy of the same offense. . . . [Third, by] guaranteeing the right to be tried only on charges made by the indictment, the [Grand Jury Clause] also protects against oppressive actions of the prosecutor or a court, who may alter the charge to fit the proof." Scutchings v. United States, 509 A.2d 634, 636 (D.C. 1986) (citations omitted). Joseph argues that these protections were not afforded to him in this case, in that he was tried for and convicted of a crime different from that for which he was indicted. We conclude that he was so tried, but not that he was so convicted.

It is settled beyond all doubt that an indictment, once it has been returned, cannot be broadened or materially altered except by the grand jury itself. Ex parte Bain, 121 U.S. 1, 30 L. Ed. 849 , 7 S. Ct. 781 (1887). ...


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