Poteat v. United States

330 A.2d 229, 1974 D.C. App. LEXIS 326

• Court: District of Columbia Court of Appeals
• Decided: December 16, 1974
• Docket: 6917
• Status: Published

Opinions

NEBEKER, Associate Judge:

In this appeal from a conviction of carrying a pistol without a license¹ the contentions are that the trial court erred (1) in denying appellant’s motion to suppress evidence, and (2) in holding the pretrial hearing on that motion in appellant’s absence. We reject both claims and affirm.

The testimony at the hearing on the motion to suppress revealed that at about 6:00 p. m. appellant was driving a vehicle owned by one of the two women who were riding with him. When appellant stopped the car at an intersection, the owner called to a nearby policeman and asked him to order appellant out of her car. The officer came over to the car and asked her for the registration, which she produced. According to the officer, while he was checking the registration, appellant got out of the car “on his own”. Upon being told by the car owner that appellant had a gun, the officer patted him down, detected a bulge in his back pocket resembling a gun, and removed what was indeed a pistol. The arrest followed.

Appellant was not present at the hearing and no explanation for his absence appears in the transcript.² Four days after the hearing, an entry was made on the docket stating, “Bench warrant issued, defendant in jail in New Jersey.” The motion to suppress evidence was denied.

At trial before another judge and a jury, the police officer repeated the testimony which he had given pretrial. Appellant, testifying for the first time, gave for present purposes an essentially similar version of the events. According to appellant, he had happened upon the disabled car with a female occupant and had repaired the defect upon her request. The woman offered him some liquor; he and his female companion got into the car and they drank and conversed. The owner then asked him to drive the car to a gas station to buy some fuel. While enroute, appellant stopped at an intersection, at which time the owner called to a nearby scooter officer, saying, “Officer, this man [has] got a gun on him. Make him get out of my car”.³ The officer ordered appellant out, and according to appellant:

I got out of the car, you know, lifted the little pillow up. You know, one of those little pillows?

* * * * * *

I’m sitting on the pillow.

* * * * * *

I lifted that little pillow up, and there is that little pistol right there sitting down underneath the pillow. So, the roller [officer] grabbed me.

At no time during the trial or at any other time did appellant object to the fact that the hearing on the motion to suppress evidence had been held in his absence, a claim which he raises for the first time on appeal.

While the reach of Rule 43, supra, may not cover the right to be present at all suppression hearings (see United States v. Gradsky, 434 F.2d 880 (Sth Cir. 1970)), we may start from an assumed premise that appellant had a constitutional right to be present and to offer his own version “as to events in which the [accused] participated”. United States v. Hayman, 342 U. S. 205, 223, 72 S.Ct. 263, 274, 96 L.Ed. 232 (1952).⁴ This right, however, is one which may be forfeited. Such a forfeiture, sometimes referred to as a waiver, is premised upon a failure to raise a now-claimed constitutional denial in a prior judicial proceeding (e. g., the failure to timely object on Miranda or other constitutional grounds when a confession or other evidence is offered) and should be distinguished from the standards applicable to determine whether the right itself has been waived (e. g., the waiver by the suspect at the time of his confession of his Miranda rights). On the first issue, see, e. g., Adams v. United States, D.C.App., 302 A.2d 232 (1973) (unpreserved identification issue) ; Washington v. United States, 134 U.S.App.D.C. 223, 414 F.2d 1119 (1969); and Grennett v. United States, D.C.App., 318 A.2d 589 (1974) (unpreserved Fourth Amendment issue). On the latter point, see, e. g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (waiver of counsel during interrogation); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (waiver of trial counsel).

It is noted that the ABA Standards for Criminal Justice, The Defense Function, § 5.2(a) (Approved Draft, 1971), contemplates that three areas of trial strategy require personal judgment of the accused —whether to plead guilty; whether to waive jury trial; and whether to testify. While other decisional areas fall “into a gray zone”, as the commentary phrases it, the Standards recognize that the decision whether to seek to litigate the suppression issue again and in the presence of the appellant is not one for his personal judgment. It is at this point where the majority departs from the premise of the dissent. It is not the right to be present at a critical stage with which we are now dealing. That right seems to be a personal one as the ABA Standards recognize in discussing exclusion from trial of a disruptive defendant. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); ABA Standards, The Function of the Trial Judge § 6.8 (Approved Draft, 1972).

The refined issue here presented then is whether the failure of appellant’s counsel, at or before trial, to challenge the pretrial motion proceeding as defective due to the absence of the accused is governed by the rule which recognizes that a party may deliberately decide for tactical reasons to bypass an available objection. Such a deliberate decision is distinguishable from an inadvertent failure to object in that it is binding and may not be challenged even by way of collateral attack. Henry v. Mississippi, 379 U.S. 443, 451-452, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). See also Nelson v. California, 346 F.2d 73 (9th Cir. 1965). These and other cases treat this issue in the context of whether, in a federal proceeding, the prisoner’s counsel deliberately bypasses an available state procedure to secure a constitutional right. There is no reason, however, why such a rule does not apply in federal courts. See Terrell v. United States, D.C.App., 294 A.2d 860, 864 (1972); cf. United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197, 1201 (1973). We are presented with no case and we have found none in which the question we see presented in this case has been decided.

In the instant case counsel may very well have decided that appellant’s version of the facts surrounding the arrest and seizure, even if believed at a second hearing, also gave rise to a reasonable basis for the arrest and search. See Young v. United States, D.C.App., 284 A.2d 671, 673 (1971). Such a judgment by counsel would have been correct. Taking either version, the essential facts justifying the officer’s action were not in dispute. Appellant agreed that the woman told the officer he had a gun. Therefore, there was constitutional justification for the arrest and the seizure of the gun even on the assumption that it was seized from the car seat as appellant exposed it to the officer’s view.⁵ See United States v. Walker, D.C.App., 294 A.2d 376 (1972); United States v. Frye, D.C.App., 271 A.2d 788 (1970).

It is also possible that counsel may have decided to go to the jury on the accused’s claim of innocent presence near the gun, and, if unsuccessful, raise the infirm suppression hearing on appeal.

If either reason motivated the action of [appellant’s] counsel, and [his] plans backfired, counsel’s deliberate choice of the strategy would amount to a waiver binding on [appellant] and would preclude him from a decision on the merits of his [factual assertion respecting the arrest]. . . . [Henry v. Mississippi, supra, 379 U.S. at 451, 85 S.Ct. at 569.]

Such a decision by counsel even without consultation with appellant would have the same effect. Id. at 452, 85 S.Ct. at 570.

Since, even according to appellant’s testimony, there is no valid Fourth Amendment issue, we conclude it is unnecessary to remand for a hearing to determine whether failure to assert the right to be present was a deliberate choice or an oversight of counsel.⁶ If the latter, the failure to seek a cure of the defect in the suppression hearing has been rendered harmless to appellant (see Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)) in view of his testimony also establishing a valid arrest and seizure (Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971)). Moreover, because both the written motion to suppress7 and appellant’s own trial testimony support admissibility of the gun, it is hardly arguable that appellant’s presence at the suppression hearing was required to aid counsel in cross-examination regardless of whether he would also testify.

Our conclusion renders without merit the assertion that trial counsel was constitutionally ineffective for failure to seek to reopen the motion to suppress with appellant present. See Washington v. United States, supra, 134 U.S.App.D.C. at 225 n. 6, 414 F.2d at 1121 n. 6. Accordingly, the judgment of conviction is

Affirmed.

1 . D.C.Code 1973, § 22-3204.

2 . Super.Ct.Crim.R. 43 provides in pertinent part:

The defendant shall be present at the arraignment, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence. .

3 .Even the motion to suppress asserted that the woman “stated [to the officer] that defendant was carrying a gun.” The hearing judge observed this fact at the beginning of the hearing when he also stated: “The facts set out in your pleading demonstrate it’s without merit.”

4 . See also Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (dictum); Neild v. District of Columbia, 71 App.D.C. 306, 310 n. 10, 110 F.2d 246, 250 n. 10 (1940) ; 3 C. Wright, Federal Practice and Procedure: Criminal § 721, at 195 (1969); 8A Moore’s Federal Practice ¶ 43.03 [1], at 43-15 & -16 (2d ed. 1974 rev.).

5 .Presumably, under appellant’s version lie possessed standing even if he was unknowing that the gun was there. See Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

6 . See Henry v. Mississippi, supra; Fay v. Noia, supra.

7 . See note 3, supra.