375 A.2d 505 (D.C. 1977)
Appellants Harris and Hart were jointly tried and convicted by a jury of first-degree murder.1 The government's evidence rested principally on the testimony of an eyewitness to the homicide who stated that he was inside the Federal City Liquor Store at 943 Ninth Street, N.W., at approximately 2:30 on the afternoon of January 21, 1975, when appellants and two other men, one of whom became the murder victim, entered the store.2
They appeared to the witness to be somewhat intoxicated.3 An argument ensued between Hart and the victim regarding a gun, and Hart pulled an ice pick out of his coat pocket and held it in his hands towards the victim's face. Hart then told the victim you are going to get my gun or else I am gonna kill you.4
According to the eyewitness, Harris then stated let's kill the victim. When the manager of the liquor store insisted they take the argument outside, Hart, the victim, and an unidentified third man left the premises, crossed the street and turned into a nearby alley. Harris followed shortly thereafter but he did not enter the alley until after the unidentified third man exited the alley and proceeded down Ninth Street.5
The witness then left the liquor store and walked down the street to get a direct view of the alley. A scuffle had started between the three men. Harris grabbed the victim from the back. The man was wrestled to the ground by both defendants and Harris struck him on top of the head. Hart then proceeded to stab the victim repeatedly with the ice pick.6
A second government witness was outside the liquor store during the time in which the homicide was committed. He testified that as Hart crossed the street he was holding the victim behind his neck. He also recalled that as Harris walked past him he said he stole his pistol and he is going to kill him.7 On January 22, 1975, the day after the homicide, the witness was shown an array of 10 photographs and he positively identified appellant Hart as the man who had been holding the victim behind the neck. Before his grand jury testimony on February 21, 1975, the witness was shown the exact same array of photographs with the exception that appellant Hart's photograph had been removed and replaced by a picture of Harris, and on that occasion the witness made a positive identification of Harris.8
Harris challenged his conviction on the ground that the court at a pretrial suppression hearing erroneously denied his motion to suppress identification evidence, and both appellants challenged the denial of their motions for judgment of acquittal.9
Whether the trial court erred in denying appellant Hart's motions for a judgment of acquittal at the close of the government's case-in-chief and at the close of all evidence?10
The fundamental distinction between first and second-degree murder is that first degree murder, with its requirement of premeditation and deliberation, covers calculated and planned killings, while homicides that are unplanned or impulsive, even though they are intentional and with malice aforethought, are murder in the second degree.11 It is settled law that the evidence of premeditation and deliberation must show that the determination to kill was reached calmly and in cold blood rather than under impulse or the heat of passion.12 No particular length of time is necessary for deliberation. It is not a lapse of time itself which constitutes deliberation, but the reflection and turning over in the mind of the accused concerning his existing design and purpose to kill.13 Premeditation and deliberation may be inferred from sufficiently probative facts and circumstances.14 Evidence of prior threats or hostile conversations between parties may support a conclusion that the defendant acted under the impetus of calm reflection rather than impulse.15
No. When the government's evidence is viewed in the light most favorable to the prosecution, it supports the conclusion that a jury could find beyond a reasonable doubt that Hart premeditated and deliberated the killing.
Hart openly threatened to kill the victim unless the victim returned his gun, brandished an ice pick toward the victim's face inside the liquor store, forcibly escorted the victim across the street into the alley, and then repeatedly stabbed the victim with the ice pick once the victim was on the ground.16
The eyewitness account established that Hart initiated the confrontation by displaying the weapon and issuing the explicit threat, then completed the homicide by stabbing the victim multiple times after Harris had struck the victim on the head.17
These concrete actions demonstrate the calm reflection required for first-degree murder rather than an impulsive response.18
The trial court did not err in denying Hart's motions for judgment of acquittal because the evidence permitted a rational jury to find premeditation and deliberation beyond a reasonable doubt.19
Whether the trial court erred in denying appellant Harris's motion for a judgment of acquittal notwithstanding the verdict?20
Voluntary intoxication will not excuse murder, but it may negative the ability of the defendant to form the specific intent to kill, or the deliberation and premeditation necessary to constitute first degree murder, in which event there is a reduction to second degree murder.21 The question whether a defendant's intoxication was so severe as to preclude formation of the required mental state presents a factual issue properly submitted to the jury when the evidence creates a genuine dispute on that point.22
No. The evidence of Harris's intoxication was limited to testimony that the four men appeared somewhat intoxicated and that Harris took a single drink from a bottle of vodka purchased inside the store.23 That testimony raised a factual question for the jury rather than compelling a judgment of acquittal.24
Harris was heard to say Let's kill the victim during the liquor-store argument, followed Hart and the victim into the alley, grabbed the victim from behind, wrestled him to the ground, and struck him on the head while Hart delivered the fatal stabs.25 These coordinated actions support the inference that Harris possessed the capacity to premeditate and deliberate.26
Because the record contains substantial evidence of Harris's active participation and only modest evidence of intoxication, the trial court correctly left the mental-state determination to the jury.27
The trial court did not err in denying Harris's motion for judgment of acquittal notwithstanding the verdict. The evidence of intoxication was insufficient to remove the issue from the jury, and the record supported findings of premeditation and deliberation.28
Whether the court at a pretrial suppression hearing erroneously denied appellant Harris's motion to suppress identification evidence?29
A conviction may be set aside if in the totality of the circumstances the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.30 The presence of a distinguishing feature in a photograph does not automatically create such a likelihood when other circumstances indicate the witness's identification remained reliable.31
No. The February 21 array differed from the January 22 array only by the substitution of Harris's photograph for Hart's, and one month had elapsed between the two viewings, making it unlikely the witness retained a precise memory of every photograph from the first array.32
Harris's photograph contained a noticeable scar, yet the witness did not mention the scar to the officers until after making the identification, and the witness had selected a different individual from the initial array.33 These facts demonstrate that the scar did not render the identification inevitable.34
The witness's pretrial identification of Harris was therefore admissible, and any uncertainty in that identification was a matter of weight for the jury rather than a ground for suppression.35
The suppression hearing court did not err in denying Harris's motion to suppress the identification evidence because the photographic procedure was not impermissibly suggestive under the totality of the circumstances.36