Hall v. United States

697 A.2d 1225, 1997 D.C. App. LEXIS 162, 1997 WL 414336
CourtDistrict of Columbia Court of Appeals
DecidedJuly 24, 1997
DocketNo. 95-CF-934
StatusPublished

This text of 697 A.2d 1225 (Hall v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hall v. United States, 697 A.2d 1225, 1997 D.C. App. LEXIS 162, 1997 WL 414336 (D.C. 1997).

Opinion

TERRY, Associate Judge:

Ronald Hall was convicted of possession of cocaine and three related offenses involving weapons and ammunition. On appeal he contends that the trial court erred by allowing the government to amend the indictment by changing the date of the alleged offenses from October 7, 1994, to August 18, 1994, without obtaining a superseding indictment from the grand jury. We affirm.

I

The government’s evidence showed that on August 18, 1994, at approximately 10:00 p.m., several police officers executed a search warrant at a house on F Street, N.E. The officers knocked and announced their presence. A young woman named Crystal Nero opened the front door, and the police entered the three-story row house. In the middle bedroom on the second floor, a detective found a plastic bag containing twenty-one ziplock bags of white powder inside the left pocket of a blue parka which was hanging on a coat rack.1 On top of the dresser, the same detective found five shotgun shells and several personal papers bearing appellant’s name and address, including a non-driver’s identification card issued by the District of Columbia government with appellant’s photograph on it. Behind the radiator in the same room, another officer found a sawed-off shotgun. Appellant was not present when the warrant was executed.

Various members of appellant’s family lived in the house, which was owned by his grandmother. Although his girl friend testified that he lived with her and their young son in Seat Pleasant, Maryland, several miles away, appellant’s uncle testified that appellant had lived in the F Street house “all his life” and that the middle bedroom on the second floor was his. The uncle said that appellant would leave from time to time, “stay three or four days, but he will always come back.” Appellant himself did not testify, but two defense witnesses stated that family members and other visitors would frequently borrow clothing from appellant, including the blue parka in the pocket of which the cocaine was found.

II

After the prosecutor made her opening statement, defense counsel challenged the indictment as deficient because it alleged an incorrect date for the charged offenses. Counsel pointed out that the prosecutor had said in her opening statement that the offenses occurred on August 18, 1994, whereas the indictment said they occurred on October 7, 1994, which in fact was the date of appellant’s arrest on a warrant. The trial court allowed the prosecutor to amend the indictment so as to allege the commission of the crimes on August 18, 1994,2 citing two cases in support of its ruling: Lucas v. United [1227]*1227States, 88 U.S.App. D.C. 160, 188 F.2d 627 (1951), and Jervis v. Hall, 622 F.2d 19 (1st Cir.1980). On appeal the government relies primarily on these two cases in arguing that, when an indictment contains minor errors that are a matter of form rather than substance, such errors may be corrected without going back to the grand jury for a superseding indictment.

The facts of Jervis are almost identical to those of this case. In Jervis the prosecutor moved to amend the indictment on the first day of trial by changing the date of the alleged offense from August 5, 1972 (the date of the defendant’s arrest), to July 15, 1972 (the actual date of the offense). On appeal from the denial of a habeas corpus petition, the First Circuit found no prejudice to the defense resulting from the amendment and affirmed the order of the District Court. 622 F.2d at 22-23.

In Lucas an indictment was filed on June 5, 1950, charging that the defendant had stolen property on August 17, 1950. When the case went to trial on June 22, 1950, the testimony described a theft by the accused on August 17, 1949. The error was more obviously clerical than in the instant case because the date stated in the indictment was a date which, at the time of trial, was two months in the future. The court held, “It is apparent from what has been said that there was no prejudice to substantial rights; and since the error was clerical, the indictment did not fail to meet the requirements of a statement of the essential facts constituting the offense.” 88 U.S.App. D.C. at 161, 188 F.2d at 628 (citations omitted).

Appellant relies primarily on Gaither v. United States, 134 U.S.App. D.C. 154, 413 F.2d 1061 (1969), and United States v. Ford, 872 F.2d 1231 (6th Cir.1989), cert. denied, 495 U.S. 918, 110 S.Ct. 1946, 109 L.Ed.2d 309 (1990), to support his quest for reversal. In Gaither the court reversed a conviction based upon an indictment which, while signed by the grand jury foreman, had not been submitted to the full grand jury for its approval. However, the court did not address how it might view the amendment of an indictment such as occurred here. We conclude that Gaither is inapposite and has no bearing on this case.

In Ford the indictment alleged that the defendant had illegally possessed a firearm on or about September 28, 1987. At trial, however, the government presented evidence that he had possessed a firearm on November 2, 1986, and August 9, 1987. The trial court instructed the jury that proof of Ford’s possession of a firearm on any of those three dates would be sufficient to permit the jury to find him guilty. On appeal the Sixth Circuit reversed, holding that the instruction had constructively amended the indictment, so that the defendant had been convicted of “a charge not levied through the protective device of a grand jury.” 872 F.2d at 1235. We find it difficult to reconcile Ford with Jervis and Lucas,3 but the Supreme Court, we think, has shown us a way out of this dilemma.

In Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), the Supreme Court reversed the convictions of six defendants on the ground that the indictment in each of the six cases did not adequately state the offense with which the defendants were charged. In so holding, however, the Court noted “the settled rule in the federal courts that an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form.” Id. at 770, 82 S.Ct. at 1050 (citations omitted; emphasis added). Thus a reviewing court, considering a challenge to an indictment, must determine whether the purported defect “amount[s] to no more than a technical deficiency of no prejudice to the defendant!!]” Id. at 763, 82 S.Ct. at 1046-47.

Following Russell, the federal courts generally have adopted a test whereby any alteration in an indictment is scrutinized to determine whether it affects a substantial or material element of the offense sufficiently to cause prejudice to the defendant. See Unit[1228]*1228ed States v. Nicosia, 638 F.2d 970, 976 (7th Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3110, 69 L.Ed.2d 972 (1981); United States v.

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Related

Russell v. United States
369 U.S. 749 (Supreme Court, 1962)
Lucas v. United States
188 F.2d 627 (D.C. Circuit, 1951)
Robert Allison Stewart v. United States
395 F.2d 484 (Eighth Circuit, 1968)
Huie E. Krana v. United States
546 F.2d 785 (Eighth Circuit, 1976)
United States v. Larry Powell
564 F.2d 256 (Eighth Circuit, 1977)
Mark Jervis v. Frank Hall, Etc.
622 F.2d 19 (First Circuit, 1980)
United States v. John B. Nicosia
638 F.2d 970 (Seventh Circuit, 1980)
United States v. Kevin Thomas Ford
872 F.2d 1231 (Sixth Circuit, 1989)
Wilkins v. State
310 A.2d 39 (Court of Appeals of Maryland, 1973)
Johnson v. State
336 A.2d 113 (Court of Appeals of Maryland, 1975)
Wilkins v. State
300 A.2d 411 (Court of Special Appeals of Maryland, 1973)
M. A. P. v. Ryan
285 A.2d 310 (District of Columbia Court of Appeals, 1971)
Johnson v. State
319 A.2d 581 (Court of Special Appeals of Maryland, 1974)

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Bluebook (online)
697 A.2d 1225, 1997 D.C. App. LEXIS 162, 1997 WL 414336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-v-united-states-dc-1997.