United States v. Alexander

471 F.2d 923 (D.C. Cir. 1972)


Five men and a woman -- all white -- walked into a hamburger shop, stood by the take-out counter, and ordered some food. The men were United States Marine Lieutenants in formal dress white uniforms; the woman was a friend of one of them. They noticed three Negro men sitting at the other end of the counter; Alexander (D) and Murdock (D) and one Cornelius Frazier. Lieutenant Kramer realized that Alexander (D) was staring at him, and he returned the stare. No words were exchanged between the two men, and Lieutenant Kramer soon turned and faced the counter. Shortly thereafter Frazier, Murdock (D), and Alexander (D) got up from where they were sitting and walked to the door behind the Marines. Murdock (D) and Frazier left the shop, but Alexander (D) stopped in the doorway. He tapped Lieutenant Kramer on the shoulder. When the Marine turned around, Alexander poked his uniform name tag and said, 'You want to talk about it more? You want to come outside and talk about it more?' When Lieutenant Kramer replied, 'Yes, I am ready to come out' or 'Yes, I guess so,' Alexander (D) added, 'I am going to make you a Little Red Ridinghood.' At this point, Lieutenant King stepped up beside Lieutenant Kramer and made a remark variously reported by the prosecution witnesses as 'What you God-damn niggers want?', 'What do you want, you nigger?', 'What do you want, dirty nigger bastard?', and 'Get out of here nigger.' Alexander (D) abruptly drew a long-barrelled.38 caliber revolver, cocked it, and pointed it at the group or directly into Lieutenant King's chest, saying, 'I will show you what I want,' or 'This is what I want.' Murdock (D) reentered the shop and drew a short-barrelled .38 caliber revolver. A series of shots suddenly rang out, and the Marines and Miss Kelly fell or dived to the floor. None attempted to retaliate. Alexander (D) and Murdock (D) withdrew from the shop, but one of them stuck his arm back into the shop and attempted -- unsuccessfully -- to fire his weapon several times more. Only Lieutenant Kramer attempted to identify this man, and he said it was Murdock (D). Lieutenants King and Lesnick were mortally wounded in the fusillade; they died within minutes. Lieutenant Kramer was wounded in the head, but he remained conscious, as did Miss Kelly, who had been shot in the hip. Only Lieutenants LeGear and Marasco were not hit. Ds drove off rapidly in the wrong direction on a one-way street. Alexander (D) was driving, and as the car drove off, Murdock (D) fired three more shots from the window of the car, at the door of the hamburger shop, and people in the street. Police stopped them within a few blocks. Two revolvers were recovered from the front floorboard of Alexander's (D) automobile. Frazier and Murdock (D) testified that the Marines in the restaurant had been drunk and loud. Frazier testified that they had obstructed his exit as he left. Both sides seem to agree that Alexander (D) did not fire his revolver inside the restaurant and that Murdock (D) -- as he testified himself -- emptied his gun at the Marines and Miss Kelly, picked up Alexander's (D) gun in the automobile, and fired three shots with it from the window. Murdock (D) filed a notice of intent to rely on the insanity defense. Murdock (D) was examined by various members of the Hospital staff, and also by a private psychiatrist of his selection. The jury found that Murdock (D) had committed the acts that constitute second-degree murder. The jury had before them only the evidence concerning the objective circumstances of the crime, and not the psychiatric evidence bearing on Murdock's (D) mental condition. Murdock (D) asked for an instruction permitting the jury to reopen the question of malice with the following instruction: Mental unsoundness, though insufficient to entitle the accused to an acquittal under the legal test of responsibility, may nevertheless be sufficient to prevent the accused from forming malice aforethought, and thus diminish the defendant's responsibility or reduce the grade of the offense. * * * If you find that the accused's mental condition resulted in a failure to formulate malice aforethought, you must find the accused guilty of only manslaughter. The trial court rejected the instruction. D appealed.