United States v. James L. Crowder

543 F.2d 312, 177 U.S. App. D.C. 165, 1976 U.S. App. LEXIS 8090

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 12, 1976
• Docket: 73-1635
• Status: Published

Opinions

ROBB, Circuit Judge:

A jury in the District Court found the defendant Crowder guilty of second degree murder, robbery and carrying a dangerous weapon. The district judge sentenced him to concurrent terms of imprisonment of five to twenty years, five to fifteen years, and one year respectively. On this appeal he contends the district judge erred (1) in receiving in evidence a bullet which pursuant to a court order had been surgically removed from the defendant’s forearm without his consent, and (2) in denying his request for an instruction on self-defense. Finding no error we affirm the conviction.

The Admission of the Bullet

As we shall see the bullet that was surgically removed from Crowder’s arm proved to be damaging evidence against him. He contends that the operation was an unreasonable intrusion into his body and therefore violated his Fourth Amendment rights. Considering this argument in the light of all the facts and circumstances, we reject it.

On the afternoon of December 18, 1970 Dr. James E. Bowman, a dentist, was murdered in his office. Death was caused by a gunshot wound entering his chest and coursing through his heart. A caliber .82 slug was recovered from his body, and another caliber .32 slug, which apparently had passed through his body, was found in his underwear. The police found a caliber .32 Smith & Wesson revolver on the ground, across the street from the doctor’s office. The revolver contained four expended rounds and two live rounds. It had been kept in the doctor’s office and was registered to his wife.

On December 23, 1970 the police arrested one Sandra Toomer, charged her with the murder, and she in turn implicated Crowder. She told the police that she and Crowder had gone to the doctor’s office intending to rob him. When Crowder confronted the doctor with a toy pistol, she said, a scuffle ensued, she ran, and she then heard gun shots. Rejoining her, Crowder told her he had been shot in his arm and his left leg, but he thought he had killed the doctor. She observed Crowder’s wounds.

Acting on the information given by Sandra Toomer the police arrested Crowder. They noted that his right wrist and left thigh were bandaged. They took him to D.C. General Hospital where x-rays disclosed a bullet lodged in his right forearm and another in his left thigh. The bullets appeared to be caliber .32 slugs. Crowder refused to be treated for his wounds.

As might be expected the police and the prosecutor thought it important to determine whether the slugs in Crowder’s arm and leg had been fired from the Bowman revolver. Accordingly, on February 10, 1971 the United States Attorney presented to Chief Judge Curran of the District Court an application for an order authorizing the surgical removal of the bullet from Crowder’s arm. The application was supported by an affidavit from Detective Richardson of the Homicide Unit, Metropolitan Police, narrating in substance the evidence that we have set out. In addition, the United States Attorney tendered an affidavit from Dr. Marcus Goumas, Senior Medical Officer at the District of Columbia jail where Crowder was incarcerated. Dr. Goumas affirmed that x-rays of Crowder’s left thigh and right forearm revealed the presence of metallic foreign bodies resembling bullets. Dr. Goumas expressed the opinion

that it would be medically inadvisable to remove surgically the slug from Mr. Crowder’s left thigh because such a procedure might cause the reduction of use or function of his left leg. The slug in his right forearm, however, is lying superficially under the skin. It is therefore my medical opinion, based upon reasonable medical certainty, that the surgical removal of the slug would not involve any harm or risk of injury to Mr. Crowder’s arm or hand or the use thereof. The surgical removal of the slug would be considered as minor surgery. If authorized, it will be performed in accordance with accepted medical practices by one or more surgeons in an operating room at D.C. General Hospital under a local anesthetic. Mr. Crowder will probably be hospitalized for a few days in D.C. General Hospital after this surgery to guard against possible infection.

The United States Attorney’s application came on for hearing before Chief Judge Curran on February 10. The defendant Crowder appeared with counsel and objected to the entry of the requested order. Dr. Goumas took the stand and in response to questions by Crowder’s counsel testified that the bullet in Crowder’s right arm “entered the lateral aspect of the arm and then extended distally and it ended superficially, roughly about three inches or so from the point of entrance. It was a very superficial wound . . . .” The wound was “so superficial” said the Doctor, that removal of the bullet would not affect any radioulnar or medial nerves. “[I]t is a superficial lesion, just like removing a small sebaceous cyst; it would not produce any lasting defect that I can envision.” He concluded that the operation could be done under a local anesthetic, and the risk involved would be similar to the risk in “crossing the street”.

Chief Judge Curran found probable cause to believe that Crowder murdered Dr. Bowman and that “evidence or instrumentality of that offense” was located in Crowder’s right forearm and left thigh. This finding is not challenged. Further, the judge found:

It is medically inadvisable to remove surgically the slug from James L. Crowder’s left thigh because this procedure might cause the reduction of use or function of his left leg. However, the surgical removal of the slug in his right forearm which is lying superficially beneath the skin would not involve any harm or risk of life or injury to James L. Crowder’s arm or hand or the use thereof.

On the basis of his findings, and citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the judge ordered:

1. That the Superintendent of the District of Columbia General Hospital, or his authorized representative or representatives, shall remove from the right forearm of James L. Crowder the foreign matter disclosed by x-rays and positively believed to be a .32 caliber slug;

2. That such removal is to be done at the District of Columbia General Hospital with accepted medical procedures, with due regard given to the health and preservation of life of James L. Crowder;

3. That if at any time during the course of the removal procedures danger to the life of James L. Crowder develops, such removal procedures shall cease and such other steps as may be necessary shall be taken to protect the health and life of James L. Crowder; and

4. That after removal of the foreign matter, such matter shall be turned over to an authorized representative of the Metropolitan Police Department, who is to make a return to the Court in accordance with requirements of Rule 41 of the Federal Rules of Criminal Procedure.

5. The defendant shall not tamper with or disturb the wound in his right forearm, or remove, destroy or dispose of the bullet lodged therein.

A petition for a writ of prohibition against the execution of Chief Judge Cur-ran’s order was denied by this court on March 2, 1971. (McGowan and Leventhal, JJ.)

On April 9, 1971, at D. C. General Hospital, Dr. Henry H. Balch removed the bullet from Crowder’s right arm. Thereafter a motion to suppress the bullet as evidence was filed by Crowder, a hearing on the motion was held before District Judge Waddy, and Dr. Balch appeared and testified. The record of the hearing discloses that Dr. Balch was a qualified general surgeon who had been practicing his specialty since 1948. He was chief medical officer in surgery at the District of Columbia General Hospital, Director of Georgetown University Surgical Division at the hospital, and special professor of surgery at Georgetown University Medical School. The surgery was done in the major operating room of the hospital. Another surgeon was present as the doctor’s assistant, along with a registered nurse. Describing the operation Dr. Balch explained that the skin over the bullet “was carefully prepared with an antiseptic solution to make it clean, surgically clean. Sterile instruments were used. The surgeons were scrubbed and gowned and gloved and had masks on. . . . So the maximum precautions that we ordinarily take surgically were used.” The bullet “was lying on the upper outer aspects [sic] of the right forearm under the skin, easily . seen and palpated, a firmness under the skin.”

This area was injected with a local anesthetic which we call Xylocaine, and an incision of about 2.5 centimeters was made over this lump dividing the skin completely and exposing the fat; and then by gently squeezing on the outer side of this incision the foreign body, which, in fact, was a bullet,¹ was extracted and handed to a police officer, Officer Shelley, who was standing watching the procedure.

The operation was then terminated by placing three or four stitches in the skin to close the skin, and a dressing was applied.

Q. From the time of the scrubbing to the time the stitches were put in, how long did that operation take?

A. A total of about ten minutes.

The area of skin made numb by the local anesthetic was only an inch or two in diameter. The bullet was found “immediately under the skin in the fat. . . . Not in any muscles” and “Not in any effective portion of any major nerves or veins.” In the Doctor’s opinion the risk to the patient was “negligible” although slightly more than there would be in drawing a sample of blood “because the degree of skin penetration is somewhat larger.” Less than five cc.’s of blood were lost, compared to five or ten cc.’s required for a premarital examination, and from ten to thirty cc.’s for a blood study on a sick patient. Because the bullet was removed by court order, without the consent of Crowder

we bent over backwards to make sure from the surgical point of view that he had every protection. Therefore, we brought him in the hospital; we examined him in detail prior to the surgery to make sure that he had no underlying physical disability that would run contra to indicate surgery, [sic]

We tested his sensitivity to the Xylocaine because very rarely people are sensitive to local anesthetics. We tested him prior to the operation to establish he was not sensitive to that.

We then removed the bullet, and then we thought we would keep him around under close observation a number of days to make sure there were no complications that would develop; and that was the reason we did it that way.

Now, in other circumstances in another arrangement, we might have done this whole thing on an out-patient basis and never hospitalized the patient at all.

* ifc Sf! !|S *

[In the case of a private patient] I would have done the surgery identically as described, and then I would have given him the note to come and see me on a future day to remove the stitches and I would have discharged him immediately from the hospital.

And if he would have said, “May I go to work?” I would say, “Yes, you can go on to work.”

Q. You would have discharged him immediately after the surgery?

A. Correct. Send him on out. Correct. Crowder was kept in the “care ward” for four or five days and then sent back to jail. There were no complications from the surgery.

The district judge overruled the motion to suppress the bullet.

At trial a firearms identification expert testified that the bullet found in Crowder’s arm, a caliber .32 Smith & Wesson long, and those recovered from Dr. Bowman’s body and clothes were all fired from the Bowman pistol.

As the Supreme Court observed in Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966), “the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” When this standard is applied to the facts we have outlined we think the conclusion is irresistable that the removal of the bullet from Crowder’s arm was reasonable and proper.

In the first place, before acting to retrieve the bullet the prosecuting authorities presented the matter to Chief Judge Cur-ran, a neutral and detached magistrate, for his decision. An adversary hearing was held at which Crowder appeared with counsel. The appellant concedes that probable cause was established. Chief Judge Cur-ran’s order was carefully drawn and hedged so as to protect Crowder’s health and life; thus the order directed that only the bullet in Crowder’s forearm be removed, leaving untouched the bullet in his thigh, and that every medical and surgical precaution be taken.

As the skilled and experienced surgeon who performed the operation testified “maximum precautions” were taken when the bullet was removed, “we bent over backwards”: The bullet, which was small, close to the skin and easily felt, was extracted by gentle squeezing after an incision an inch long had been made. Less than five cc.’s of blood were lost, an amount smaller than may be taken in a premarital examination. The entire operation took ten minutes. In the opinion of the surgeon the risk was “negligible” and in fact there were no complications. Although Crowder was kept in the “care ward” for four or five days the procedure did not require such treatment. Had Crowder been a private patient he would have been discharged immediately and told he might go back to work; the care ward precaution was imposed only because the surgeon “bent over backwards”, no doubt having in mind the possibility of future legal complications.

We do not find in these procedures, as the Supreme Court did in Rochin v. California, 342 U.S. 165, 172, 174, 72 S.Ct. 205, 209, 210, 96 L.Ed. 183 (1952), and the defendant does here, any conduct “so brutal and so offensive to human dignity” that it “shocks the conscience.” Reasonableness of course is a matter of degree and we do not say that a court may authorize any challenged operation, no matter how major. The limits of reasonableness are well illustrated by the distinction drawn in Chief Judge Curran’s order between the bullet in the arm and the one in the thigh; since removal of the bullet in the thigh might cause permanent injury to Crowder it was forbidden. In any event we are not here called upon to give general approval of surgical operations in search of evidence. We are concerned only with the procedures followed in this case. We think those procedures were reasonable and justified in the circumstances. We repeat and summarize the factors that lead us to this conclusion: (1) the evidence sought was relevant, could have been obtained in no other way, and there was probable cause to believe that the operation would produce it; (2) the operation was minor, was performed by a skilled surgeon, and every possible precaution was taken to guard against any surgical complications, so that the risk of permanent injury was minimal; (3) before the operation was performed the District Court held an adversary hearing at which the defendant appeared with counsel; (4) thereafter and before the operation was performed the defendant was afforded an opportunity for appellate review by this court.

If the defendant’s argument is sound then no intrusion into a man’s body that goes beyond a needle prick can ever be authorized by a court. We cannot agree that this is or ought to be the law. In our opinion the prosecuting authorities in this case made an intelligent and commendable effort to comply with the law; they resorted to “skillful and imaginative legal planning, bottomed upon cooperative utilization, rather than utter disregard, of judicial power, and designed to achieve legitimate ends . Adams v. United States, 130 U.S.App.D.C. 203, 208, 399 F.2d 574, 579 (1968), cert. denied, 393 U.S. 1067, 89 S.Ct. 722, 21 L.Ed.2d 710 (1969).

The Denial of the Instruction of Self-Defense

Testifying in his own behalf Crowder gave the jury his version of the killing. He said he had gone to Dr. Bowman’s office with Sandra Toomer and one Nick.² Crowder sat in the waiting room while Sandra and Nick went into the office. Then, said Crowder:

They started to argue. Their voices got loud. So I went into the office. Just as I was going into the office, Dr. Bowman was pulling a gun out of his pocket. So I grabbed the barrel of the gun and I twist the barrel of the gun this way and I got shot. That is where I got shot in the arm. And I twist the barrel of the gun down this way and I got shot in the leg and I hit the floor. I fell on the floor.

So by this time, Nick was close enough to him, Nick twist the gun out of his hand. By this time Sandra ran out the door and Nick shot him twice, and Nick ran out the door behind Sandra and I ran out behind Nick. [Emphasis supplied.]

At the close of the evidence defense counsel proposed an instruction on self-defense, expressed in some 640 words, divided into 10 paragraphs. The predicate of the instruction, expressed in the first paragraph, was “If you are satisfied beyond a reasonable doubt that the defendant Crowder fired the fatal shot . . . then the following self-defense instructions may be considered by you”. The district judge refused to give the requested instruction or to charge on self-defense. The defendant says this was error. We disagree for several reasons.

1. The proposed instruction was complicated and confusing on its face, and if it had been given it would have confused the jury. For this reason alone the court was justified in rejecting it.

2. A more fundamental objection to any instruction on self-defense is that such a charge would have contradicted Crowder’s testimony and repudiated the theory of his defense.

Crowder now says the evidence fairly raised the possibility that he fired the fatal shot in defending himself, but at trial he clearly and unequivocally testified that he did not shoot at all, that he was lying on the floor when the fatal shots were fired by Nick. If the jury believed him he should have been acquitted, not because he shot in self-defense, but because he did not shoot. Thus we think the issue of self-defense was not raised by Crowder at trial.

We are not impressed by the effort of counsel to conjure up a ease of self-defense from the theory that Crowder perjured himself in his testimony, and that a shooting in self-defense may be inferred from various wisps of evidence. Our conclusion is fortified by Belton v. United States, 127 U.S.App.D.C. 201, 382 F.2d 150 (1967), upon which counsel relies. In that ease the defendant testified that after a quarrel and scuffle with his wife he ran out of the house, leaving her uninjured. When he returned some time later he found she had been shot. The District Court denied the defendant’s request for a manslaughter instruction. On appeal we said that the defendant’s story

if believed by the jury, could lead only to acquittal since appellant claimed he was not even present when deceased was shot. Appellant’s counsel argue to us, however, that the jury was not bound to treat his testimony as a unit, either believing or disbelieving it in its entirety, and that the jury was entitled to accept part of appellant’s version — that his wife assaulted him without provocation and that they struggled for possession of the gun— while disbelieving his assertion that his wife was not shot while he was in the room.

127 U.S.App.D.C. at 206, 382 F.2d at 155. We held however that “the charge requested was objectionable as based on speculation without foundation in the evidence.” Id. at 207, 382 F.2d at 156. In the present case we think the self-defense theory is also based upon impermissible speculation. The theory fragments the testimony in a “selective process ... so attenuated as to strain credulity to the breaking point.” Brooke v. United States, 128 U.S.App.D.C. 19, 23, 385 F.2d 279, 283 (1967). Granted that the items of proof in a criminal case may resemble the pieces of a jigsaw puzzle, in this case the pieces required for a showing of self-defense are missing and cannot be fabricated from the evidence.

3. Had the court granted the requested instruction on self-defense, Crowder might well contend now that he was fatally prejudiced by the plain implication of the charge that he had lied in his testimony. Such a statement, coming from the court and so at variance with Crowder’s testimony, would have eviscerated his defense.

The judgment is affirmed.

1 . A caliber .32 Smith & Wesson long bullet ii one fifth of an ounce. small; it weighs 98 grains, or barely more than

2 . Sandra Toomer denied that there was a third person with her and Crowder.