Daniel J. Bowles v. United States

439 F.2d 536, 142 U.S. App. D.C. 26, 1970 U.S. App. LEXIS 6322

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 20, 1970
• Docket: 21948_1
• Status: Published

Opinions

On Hearing En Bane

LEVENTHAL, Circuit Judge:

This is an appeal from a judgment entered on convictions of murder in the first degree (homicide while attempting to perpetrate a robbery) and of assault with intent to rob. The principal questions presented for decision are: (1) whether there was sufficient evidence to support the jury’s verdicts; (2) whether a knife seized from the person of appellant should have been suppressed as the fruit of an illegal, warrantless arrest; (8) whether appellant should have been permitted to call a witness who had indicated that he would claim his Fifth Amendment privilege against self-incrimination. We affirm.

I. The Sufficiency of the Evidence

Detective Wilson of the Metropolitan Police testified for the Government that in the early hours of the morning of March 14, 1967, responding to a call, he discovered in an alley in the rear of 1423 R Street, N. W., the deceased, Donald W. Ingham, lying face down with blood coming from his mouth and nose. One of the deceased’s pants pockets was turned inside out and torn. On the ground near the body were a billfold belonging to the deceased, scattered change, and the keys to deceased’s car, parked several blocks away. There was also a wrist identification type bracelet which belonged to the deceased who, it developed, was a serviceman, although clad at this time in dark civilian clothes.

Ingham was pronounced dead on arrival at the hospital at 3:50 a. m. The doctor who performed the autopsy testified that the cause of death was a knife wound in the chest, a wound that could have been inflicted with a hard blow of the knife found on appellant at the time of his arrest.

The chief evidence for the Government, however, was the testimony of Mary Burwell, with whom appellant’s mother lived. She said that between 8 and 9 p. m., March 14, appellant came to the apartment, sat on the bed beside his mother, asked whether her nerves were all right, and said he had something to tell herj that he had killed a man, a soldier, in the back of an alley on R Street. She stated that appellant showed them a knife while he was telling them about the event. She was asked if appellant had said why he killed the soldier. She answered, “No, he said he don’t like for anyone to put their hands in his face.” Other Government testimony established that there were no other killings involving servicemen on March 13 or 14; and that the two other alley killings that weekend were remote in either time or place, and both had been solved.

Although the question is close, we think this evidence was sufficient to place all the charged counts before the jury. Appellant’s confession to his mother in the presence of Mary Burwell, together with the circumstances that no other killings of this type had occurred in the vicinity during the time in question, provides a basis from which the jury could conclude that it was appellant who stabbed the deceased.

A more difficult issue, though, is the sufficiency of the proof that when appellant assaulted the deceased he did so with the intent to rob thereby making the killing a felony murder. Sometimes an intent to rob can be inferred from little more than the assault itself.¹ Here, however, we have no witness to the assault, and the circumstances of a nighttime fight in an alley with a soldier in civilian clothes are consistent with purposes other than robbery. What provides a legally sufficient foundation for the jury’s finding of an intent to rob is that coupled with the assault there was evidence — the pocket ripped and turned inside out, the billfold discarded nearby, the change scattered about — that the deceased was robbed. This evidence concerning the appearance of the scene after the assault is probative of attempted robbery and sufficiently narrows the ambiguity residing in the mere fact ot assault.²

Counsel argues that someone not involved in the stabbing may have gone through the pockets of the deceased sometime after the killing and before the body was discovered. That is a possibility,³ but we are unable to say that it is a possibility that required the jury to entertain a reasonable doubt as to defendant’s purpose. We think the prosecution evidence was sufficient to avoid a verdict directed for defendant at the end of the prosecution’s case.

With a starting point, established by plainly adequate evidence, that defendant killed the deceased, the other facts suffice as circumstantial evidence to warrant an inference of the intent of robbery, subject to being negatived by some other explanation by the defendant. He did not provide such explanation, but instead offered defenses which the jury disbelieved: a defense of alibi, coupled with the claim that he had been joking when he told his mother of the killing, and that he had been told by one Raymond Smith that Smith had committed the killing.

We cannot say that on this record that the jury which was morally convinced of his intent to rob must be charged with abdicating reason.

II. Validity of Arrest and Seizure of Weapon

This case was set down for argument en banc together with Dorman v. United States, decided April 15,1970,⁴ because it too raised the issue of the validity of a warrantless arrest. As with Dorman, we remanded to the District Court for further elaboration of the circumstances surrounding the arrest'and analysis of the legal issues involved. We have reviewed the findings of fact and conclusions of law filed by the District Court and conclude that they adequately support the court’s overall conclusion that the arrest of appellant and seizure of a knife found after a search of his person was valid.

The following situation appears from the trial transcript and remand findings:

By noon of Saturday, March 18, 1967, the police had obtained written statements from appellant’s mother and Mrs. Burwell recounting his confession to the killing of a soldier on March 14. These statements included the information that appellant had told his mother and Mrs. Burwell that he was going to kill again before being taken into custody. But although the police had learned from appellant’s mother and Mrs. Burwell that appellant often came to Mrs. Burwell’s house at 7:00 o’clock on Sunday evenings to see a particular television program, they had no indication of where he might be found prior to that time, except a general indication as to the area of the city which appellant frequented. Consequently initial efforts at apprehension were limited to patrolling the streets in this area, and maintaining a stakeout at Mrs. Burwell’s apartment. At around 7:00 p. m., Sunday, March 19, appellant was seen entering Mrs. Burwell’s apartment, and immediately thereafter the police went to the apartment and made the arrest.

Appellant was arrested within five feet of the front door after a peaceful entry by the police. He was immediately taken out onto the stairwell landing where he was searched and the knife recovered. No search of Mrs. Burwell’s apartment was undertaken. The apartment was the home of Mrs. Burwell and appellant’s mother, but appellant did not reside there.

The District Court’s view that the warrantless arrest of appellant was valid was based first on the finding that the entry of the police into the apartment was consented, and second on the conclusion that because the entry was consented and because appellant was immediately led out of the apartment without a search of the premises, the actual seizure of appellant stands on the same footing as an arrest in a public place for which a warrant is not required. Rouse v. United States, 123 U.S.App.D.C. 348, 359 F.2d 1014 (1966); Ford & Kimble v. United States, 122 U.S.App.D.C. 259, 352 F.2d 927 (1965).

We think the District Court’s findings and conclusions are in conformity with the evidence. The District Court found that Mrs. Burwell, who owned the apartment, and appellant’s mother, who occupied a room there, had cooperated with the police and voluntarily given information incriminating appellant. These statements which had been reduced to writing and signed, constituted strong probable cause for the police to arrest appellant. More than that, the police had strong cause to arrest the suspect at a particular place for they were also told specifically that appellant was in the habit of visiting Mrs. Burwell’s apartment on Sunday evenings to watch a certain television program. There is nothing in the record which would negative the applicability in this case of the natural inference that one who initiates giving information to the police, both of the identity of a particular suspect and of the fact that the suspect can be found in his home at a particular time, thereby manifests his consent to an entry by the police at that time for the purpose of arresting that suspect.

The entry by the police into the Burwell apartment, solely to arrest and without any search, was not one which trammeled on the general protection provided by the Fourth Amendment for the security of the home against warrantless entry by the agents of the Government. On the contrary, Mrs. BurwelPs awareness that the police would probably arrive at her home at the date and time she had focused is really a greater protection than that which she would have obtained from the usual magistrate’s ex parte warrant, with no specification beyond the general rule of prompt execution by the police. Moreover, the absence of any search within the apartment makes it unnecessary for us to consider whether or to what extent this kind of consent to entry for the purpose of arrest confers corollary authority to search the area controlled by the suspect at the time of arrest. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The facts of this case also make it unnecessary to consider the police practice at the time of the arrest of not seeking arrest warrants on weekends. The District Court determined that this is no longer the practice. Instead arrest warrants are now sought on weekends from the recently appointed Magistrates. See Dorman v. United States, supra.

The appellant has a privacy interest in the security of his person against unreasonable seizure which is different from the householder’s privacy interest in the security of his home against unreasonable search. As to this we agree with the District Court that in view of the circumstances his objection to a warrantless arrest is no more forceful than that of a person who objects to being arrested without a warrant in a public place. In Dorman, we approved the rule of Ford & Kimble, supra, that a warrant is not required for an arrest on probable cause in a public place. The Fourth Amendment is a protection for the right to be let alone, free from unreasonable official intrusion into a private sanctum whether that intrusion be in the form of a knock on the door at midnight or the monitoring of a telephone conversation in a public phone booth. See Katz v. United States, 389 U.S. 347, 350-351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). It is not a shield against the inevitable loss of privacy which accompanies one’s decision to go out into the world and mingle with his fellow man. A visitor in someone else’s home is not protected by the Fourth Amendment from the risk that the owner will consent to the entry of the police.⁵ When appellant decided to visit the Burwell apartment, he had no right to demand that Mrs. Burwell make her home a sanctuary.

Our conclusion that the police acted lawfully when they took custody of the appellant and removed him from the apartment leads inescapably to the conclusion that the police acted lawfully when they searched appellant in the stairwell outside of Mrs. Burwell’s apartment and then found and seized the knife. The police had clearly adequate grounds to fear that appellant was armed and dangerous, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and the search was well within the scope authorized by Chimel v. California, supra.

III. Refusal to Put on the Stand a Witness Who Had Indicated That He Would Invoke His Privilege Against Self-Incrimination

Appellant gave testimony that on the night of March 13, at around 11:30 p. m. he encountered Raymond Smith, Yvonne Smith and Jerry Neely in the 1300 block of T Street, N.W., and that Raymond Smith said to him, “Man, I just got me one. I just got me a man up the corner. If the police get me, I am going to tell them that Jerry did it.”

To buttress appellant’s defense that it was Smith and not he who killed Ingham, Neely was called as a witness for the defense. Neely corroborated appellant’s account of the conversation with Smith. He testified that Smith had said that he had just got one on R Street. Melvin Royal also testified that Smith had come to him looking for Neely and saying that Neely had been telling people that he had killed a soldier.

The District Court did, however, refuse to permit appellant to call Smith as a witness after it had ascertained, out of the presence of the jury, that Smith intended to invoke his privilege against self-incrimination and would refuse to answer questions put by appellant’s trial counsel. Defense trial counsel thereupon requested a missing witness instruction, and the court indicated its view that such an instruction was not appropriate since Smith “was not available to either side.” When counsel persisted that he was available, the Court answered, “Not if he invokes his constitutional privilege.” Finally defense argued that the fact that Smith had invoked his privilege should be brought to the attention of the jury. The Government objected and the court indicated that it was inclined to agree that no mention should be made as to why Smith was not called as a witness. The court reserved a final ruling, however, to afford defense an opportunity to assemble its authorities. Just before closing argument the court reverted to the problem and ruled, on the authority of Morrison v. United States, 124 U.S.App.D.C. 330, 365 F.2d 521 (1966) that counsel should “refrain from any mention of the decision made by Raymond Smith to invoke the Fifth Amendment.”

We find no error in these rulings. It is well settled that the jury is not entitled to draw any inferences from the decision of a witness to exercise his constitutional privilege whether those inferences be favorable to the prosecution or the defense. Billeci v. United States, 87 U.S.App.D.C. 274, 184 F.2d 394 (1950). The rule is grounded not only in the constitutional notion that guilt may not be inferred from the exercise of the Fifth Amendment privilege but also in the danger that a witness’s invoking the Fifth Amendment in the presence of the jury will have a disproportionate impact on their deliberations. The jury may think it high courtroom drama of probative significance when a witness “takes the Fifth.” In reality the probative value of the event is almost entirely undercut by the absence of any requirement that the witness justify his fear of incrimination and by the fact that it is a form of evidence not subject to cross-examination. Fletcher v. United States, 118 U.S.App.D.C. 137, 332 F.2d 724 (1964).

An obvious corollary to these precepts is the rule that a witness should not be put on the stand for the purpose of having him exercise his privilege before the jury. See Fletcher v. United States, supra. This would only invite the jury to make an improper inference. For the same reason no valid purpose can be served by informing the jury that a witness has chosen to exercise his constitutional privilege. That fact is not one the jury is entitled to rely on in reaching its verdict.

The other side of the coin, however, is the rule that the jury is not entitled to draw any inference from a failure to testify that is aseribable to the witness’s reliance on his Fifth Amendment privilege. Morrison v. United States, supra. Indeed, this court has held it inappropriate to spark a missing witness inference against the party who would have been called on to produce a witness to incriminate himself. Pennewell v. United States, 122 U.S.App.D.C. 332, 353 F.2d 870 (1965).

In the instant case the District Court properly admonished counsel to make no mention in their closing argument of the lack of testimony from a witness counsel knew would have invoked the Fifth Amendment. Certainly the judge was correct in refusing to charge the jury that an inference could be drawn from the absence of such a witness. Morrison v. United States, supra.

However, the trial judge could properly have given a neutralizing instruction, one calculated to reduce the danger that the jury will in fact draw an inference from the absence of such a witness. Morrison v. United States, supra. Had either counsel requested the court to instruct the jury that they should draw no inference from Smith’s absence because he was not available to either side, it would have been error to refuse this instruction. Appellant’s trial counsel did not request such an instruction. There are meaningful tactical reasons why a defense trial counsel might elect not to seek such an instruction.⁶ Had such an instruction been sought in this ease, the District Court, which noted in colloquy with counsel that Smith “was not available to either side,” would undoubtedly have granted the request. As it is we see no error in the court’s handling of the issues presented when Smith decided to invoke his Fifth Amendment privilege.

We have considered other contentions presented by appellant’s counsel.⁷ We find no reason for reversal.

Affirmed.

1 . Accardo v. United States, 102 U.S.App.D.C. 4, 249 F.2d 519 (1957), cert. denied, 356 U.S. 943, 78 S.Ct. 787, 2 L.Ed.2d 817 (1958); Bullock v. United States, (No. 22,480, March 17, 1970).

2 . Even so this evidence of the appearance of the scene is not as probative on the issue of intent as the earmarks of a plan to rob, manifesting themselves prior to the assault, on which we relied in Harrison v. United States, 128 U.S.App.D.C. 245, 387 F.2d 203 (1967).

3 . It is also possible that appellant formed the intent to rob after killing the deceased.

4 . 140 U.S.App.D.C. 313, 435 F.2d 385 (1970).

5 . Weaver v. Lane, 382 F.2d 251 (7th Cir. 1967); Friedman v. United States, 381 F.2d 155 (8th Cir. 1967); Nelson v. California, 346 F.2d 73 (9th Cir.), cert. denied, 382 U.S. 964, 86 S.Ct. 452, 15 L.Ed.2d 367 (1965); see United States v. Missler, 414 F.2d 1293, 1302 (4th Cir. 1969), cert. denied, 397 U.S. 913, 90 S.Ct. 912, 25 L.Ed.2d 93 (1970).

6 . The tactical considerations may be elucidated in terms of the facts of the case before us as follows: Defense trial counsel might well conclude that while a jury would readily understand for itself that defendant couldn’t be expected to produce as a witness a man (Smith) who would testify that he had killed the deceased, it might have expected — in terms of inquiring whether there was a reasonable doubt of guilt — that the Government would have called Smith to testify that he had not killed the deceased. The possibility for arousal of a reasonable doubt in the minds of the jurors would have been removed by a neutralizing instruction from the court.

In view of this tactical consideration the case cannot fairly, be viewed as involving a failure to seek or provide an instruction that calls for reversal under the plain error doctrine.

The defense might feel more in need of this kind of instruction when there is a danger that the jury will doubt the existence of a person who does not appear as a witness. Here the existence of Smith was corroborated by two witnesses other than appellant.

7 . Two other issues raised by appellant do not require extensive discussion. Appellant sought to testify that at the time of his arrest he had told the police that Smith had committed the killing. The general rule, subject to rare exceptions not applicable here, holds that testimony concerning prior consistent statements is inadmissible. See 4 J. Wigmore, Evidence § 1124 (3d ed. 1940).

Appellant also contends that the trial judge abused his discretion in allowing appellant to be impeached by two 1957 petit larceny convictions and a 1964 housebreaking conviction. The court indicated that it would allow impeachment with these convictions in appellant’s record because they involved dishonest conduct. Moreover the court confined impeachment to appellant’s most recent petit larceny and housebreaking convictions. We see no basis for concluding that the court abused its discretion. See United States v. White, 138 U.S.App.D.C. 364, 427 F.2d 634 (1970).