United States v. David L. Washington

413 F.2d 409, 134 U.S. App. D.C. 135, 1969 U.S. App. LEXIS 12347

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 19, 1969
• Docket: 22449
• Status: Published

Opinions

BURGER, Circuit Judge:

The Government consented to reversal to allow a new trial and we give substantial deference to the position of the Government in these circumstances. However, a suggestion by the Government is just that; it is this Court’s responsibility to decide. We are unable to accept the suggestion that a new trial is the only remedy; that cannot be known until the District Court has had an opportunity to consider what was not presented at or before trial on the identification issue. Moreover, the trial judge will now have the benefit of the intervening cases decided by this Court.

In aid of remand we turn to Appellant’s contention that the trial court erred in refusing to give Appellant’s requested instruction on the identification issue. Although the Government thought it would be unnecessary for this Court to reach this question, the brief of the United States states:

Nevertheless it should be noted that trial counsel did not object to the court’s ruling on his proposed instruction, and unless the alleged deficiency amounts to plain error affecting substantial rights, appellant would not be entitled to relief on this ground. Howard v. United States, 128 U.S.App. D.C. 336, 389 F.2d 287 (1967). The language of the requested instruction is clearly not supported by the evidence adduced at trial and goes far beyond any statement of an evidentiary theory offered by appellant. Moreover, the obvious argumentative conclusions in the instruction were fully alluded to by defense counsel in his closing summation. The identity instruction as actually given below (Tr. 238) adequately fulfilled the requirements of the pertinent guidelines set forth by this Court in Jones v. United States, 124 U.S.App.D.C. 83, 88, 361 F.2d 537, 542 (1966).

Brief for Appellee, page 10 n. 8.

The Government’s brief correctly states the controlling rule and hence we limit the scope of the remand solely to the propriety of the identification procedures under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and exclude from consideration the instruction issue.

We cannot agree with the dissent that Macklin v. United States, 133 U.S. App.D.C. 139, 409 F.2d 174 (decided February 18, 1969) requires reversal. Macklin was decided after the trial in the instant case was concluded. We hold that Macklin does not apply retroactively.¹

The case is remanded for proceedings consistent with this opinion.

Remanded.

1 . Our holding as to non-retroactivity rests, of course, on two factors which we deem controlling: (1) Macklin resulted in an affirmance; thus the language now relied upon by Judge Faby was not applied retroactively to the defendant in Macklin; (2) the identification area has been decidedly marked by a spirit -of non-retroactivity, see Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The reasons, obviously, were to avoid a large scale breakdown in criminal dockets already overloaded to the breaking point.