Before the robbers left the parking lot McKnight was able to free himself, look out the window of the shed, and see the two men running across the lot. He saw them join a third man who was apparently serving as their lookout. The three men ran together a short distance and then jumped into the passenger side of a waiting automobile. McKnight noticed that the lookout was wearing green pants and that the getaway car was a two-door red automobile. Before the getaway car was out of sight McKnight ran to the side of the parking lot where a fellow worker, Roy F. Brown, was warming up the engine of his taxi while waiting to take McKnight home. McKnight told Brown he had been robbed and the two followed the getaway car, keeping it always in their sight, except for a few seconds when they were following it around a corner. According to McKnight no one entered or left the fleeing automobile during the chase. At one point Brown's taxi closed to within "half a car length on the left" of the robbers' car; McKnight was then able to recognize the passenger on the front seat as the "man with the gun" and appellant Proctor on the rear seat as the man who had tied him up and taken his money.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Rehearing En Banc Denied in No. 24037 July 15, 1971.
Danaher, Senior Circuit Judge, and Leventhal and Robb, Circuit Judges.
On Rehearing: Bazelon, Chief Judge, Wright, McGowan, Tamm, Leventhal, Robinson, MacKinnon, Robb and Wilkey, Circuit Judges.
After a trial by jury the appellants and a co-defendant, one Akers, were convicted of armed robbery, robbery, and assault with a dangerous weapon (22 D.C.Code §§ 3202, 2901, 502 (1967)). A motion for judgment of acquittal by a fourth defendant, one Dockery, was granted by the district court. Akers has not appealed. We affirm the convictions of the appellants Trantham and Proctor.
At trial the proof for the government was that a few minutes before 6:00 o'clock on the afternoon of December 4, 1968, two men robbed James E. McKnight, the attendant at a parking lot at 12th and C Streets, S.W. in Washington. One of the men held a gun on McKnight while the other tied him up and took approximately $37.00 from his pockets. The $37.00 included some $10.00 or $12.00 in coins. In addition, the robbers took an unusual good luck charm and a copper four-leaf clover. The robbery occurred in the parking lot shed or shack which was well lighted.
The chase ended at 14th Street and Pennsylvania Avenue, N.W., where the getaway car was halted by traffic, and McKnight was able to enlist the help of a police officer. At this point the passenger in the right front seat of the robbers' car jumped out and ran, dropping a gun in the street. The policeman, Officer Jones, placed the other occupants of the automobile under arrest. He found Akers in the driver's seat, Trantham in the left rear seat, and Proctor in the right rear seat. Dockery was in the middle of the rear seat. Searching the automobile at the scene the police recovered McKnight's good luck charm and four-leaf clover from the console, which also contained approximately $7.00 in coins and $13.00 in bills. Money was also "scattered over" the back seat. In addition, the police recovered a chrome plated revolver from the street where it had been dropped by the man who fled. A second pistol was found on the back seat. McKnight testified that the chrome plated revolver resembled the one used by the robber who held him up.
McKnight positively identified Proctor as the man who had tied him up and gone through his pockets. He was unable to identify Trantham as the third man or lookout who had run from the parking lot; but he did testify that this man was wearing bright green pants. Officer Jones and another policeman testified that when arrested Trantham was wearing "bright green pants". Their report of the arrest prepared immediately after the event stated that Trantham was dressed in a "blue jacket -- plaid pants".
Counsel for Trantham at trial made much of the alleged discrepancy between the testimony of the police officers that Trantham's pants were bright green and their report, made a year earlier, that the pants were "plaid". In this connection counsel elicited from one or more of the defendants testimony that they believed color photographs of the defendants had been made on the day of the arrest. Counsel then demanded that the government produce all such photographs. The photographs and several color slides were produced, including one photograph of Trantham showing a portion of his pants. We have examined the photograph and find that so far as the color of Trantham's pants is concerned it is inconclusive.
Trantham argues that the evidence did not support the verdict against him but we think it was plainly sufficient. The issue with respect to the color of his pants was thoroughly explored in the testimony and argued before the jury. The jury had before it the testimony of the police, the police report, and the photograph of Trantham. In short, the case was one for the jury and we see no reason to disturb its determination. We find no basis for Trantham's suggestion that the government was guilty of some impropriety in failing to produce the photographs before they were demanded by counsel.
Proctor argues that it was error to receive in evidence the gun recovered from the rear seat of the robbers' automobile. We do not agree. It was a legitimate inference from the evidence that the occupants of the automobile were engaged in a joint criminal venture; and this being so the government was entitled to introduce the gun as a part of their equipment for that venture. See United States v. Baker, 419 F.2d 83 (2d Cir. 1969), cert. denied, 397 U.S. 976, 90 S. Ct. 1096, 25 L. Ed. 2d 271 (1970); Payne v. United States, 111 U.S.App.D.C. 94, 294 F.2d 723, cert. denied, 368 U.S. 883, 82 S. Ct. 131, 7 L. Ed. 2d 83 (1961); Morton v. United States, 87 U.S.App.D.C. 135, 183 F.2d 844 (1950); 1 J. Wigmore, Evidence §§ 83, 88 (3d ed. 1940).
Trantham offered an insanity defense but waived trial by jury on that issue. After hearing testimony from two psychiatrists, one called by Trantham and one by the government, the district judge concluded that the government had sustained its burden and he accordingly entered a verdict of guilty. We think the court's evaluation of the evidence and the finding are supported by substantial evidence and should not be disturbed.
We have carefully considered the other points raised by the appellants and find them to be without merit.