Daniel J. Bowles v. United States

Judge, BAZELON, Chief Before TAMM, WRIGHT, McGOWAN, ROBINSON, LEVENTHAL, MacKIN- sitting ROBB, Judges, Circuit NON en banc. Hearing En Bane

On Judge: LEVENTHAL, Circuit judgment appeal en- is an from a This of murder on convictions tered attempting degree (homicide while first robbery) perpetrate of assault principal ques- with intent rob. (1) presented for decision are: tions whether there sufficient support verdicts; jury’s (2) whether dier, alley in the back of an Ron Street. a knife seized from the She stated that them showed pellant suppressed should have been telling a knife while he was them about illegal, arrest; the fruit of an warrantless the event. She was asked if should why have been had said he killed the soldier. She permitted to call a answered, “No, witness who had in- he said he don’t like anyone dicated that he claim his Fifth put to their hands in his face.” privilege against Amendment self-in- testimony Other Government established crimination. We affirm. killings that no there were other involv- ing 14; servicemen on March 13 or Sufficiency I. The the Evidence of killings alley that other that the two weekend were remote in either time or Detective of the Metro Wilson place, and both had been solved. politan Police for the testified Govern Although close, question the we is early ment morning in the hours the think this evidence sufficient was 14, 1967, responding of March place charged the all the counts before call, alley to a he in the discovered an jury. Appellant’s to his moth- confession Street, W., rear of 1423 R de the N. Burwell, Mary presence er the ceased, Ingham, lying Donald W. face together no the with circumstances coming down with blood from his mouth killings type of this had occurred pants and nose. One of the deceased’s during vicinity ques- in the the time pockets was turned inside out and torn. tion, provides the a basis from which ground body On the near the were could conclude that it was belonging deceased, billfold to the scat who stabbed the deceased. change, keys tered and the to deceased’s though, issue, the A is more difficult car, parked away. several There blocks sufficiency proof of the that when type was also a wrist identification pellant did so the assaulted deceased belonged bracelet which the deceased making thereby rob with intent to who, the developed, serviceman, al was killing felony Sometimes the murder. though clad at this time in dark civilian from can inferred to rob intent clothes. Here, itself.1 little more than the assault Ingham pronounced was dead ar- on however, as- have no witness we hospital rival at the at 3:50 a. m. night- sault, of a circumstances and the performed autopsy doctor who the testi- alley fight a soldier in an with time fied that the cause of death was knife pur- with are consistent civilian clothes chest, wound in the a wound could provides robbery. poses other than What have been inflicted a hard with blow legally foundation sufficient the knife found time on at the jury’s finding rob is of an intent of his arrest. evi- coupled there was assault in- ripped turned pocket dence—the The chief for the evidence Govern- nearby, ment, however, out, testimony side billfold discarded de- change Mary about—that Burwell, appellant’s scattered with whom con- robbed. This ceased was cerning mother lived. She said that between scene m., appearance of the p. 14, appellant and 9 March came attempted probative of apartment, the assault robbery on the bed sat beside sufficiently narrows mother, asked her nerves were residing fact ot mere something ambiguity in the right, and all said he herj man, killed a a sol- tell he had assault.2 appearance of the U.S.App. this evidence 2. Even so Accardo probative on (1957), denied, not as scene is cert. D.C. plan of a earmarks intent as issue of L.Ed.2d 817 prior manifesting rob, themselves ; (No. (1958) Bullock assault, in Har- we relied 22,480, 1970). March argues knife that someone found after a of his Counsel search gone stabbing may

volved valid. through pockets the deceased following appears situation and before sometime after the transcript the trial find- and remand body possi- That is a discovered. ings: say bility,3 but we are unable By Saturday, noon of March required possibility state- had obtained written de- a reasonable doubt as entertain ments from mother and Mrs. purpose. prose- We think fendant’s recounting Burwell confession to avoid cution sufficient evidence was killing of a soldier on March 14. These for defendant at verdict directed information that statements included the prosecution’s end case. Mrs. had told his mother and starting point, With a established again going Burwell that he was to kill plainly adequate evidence, defend- being custody. taken into But deceased, other facts ant killed the the although police learned from the had suffice circumstantial pellant’s mother and Burwell that Mrs. of an inference of the intent warrant appellant Burwell’s often came to Mrs. negatived by subject being robbery, evenings Sunday house at o’clockon 7:00 by explanation defendant. some the particular program, to see television provide explanation, He did such but not they had no indication of where he the instead offered defenses which time, except prior found to that be alibi, coupled disbelieved: a defense of general of the indication as the area joking with he had been the claim that city appellant frequented. which Conse- killing, the when he told mother of quently apprehension initial efforts Ray- by one and that he had been told patrolling streets in were limited to the committed mond that Smith had Smith area, maintaining a this and stakeout killing. apartment. around Mrs. At Burwell’s say on record that We cannot p. m., 19, appellant Sunday, 7:00 March morally of convinced which entering apart- was was seen ment, Mrs. Burwell’s charged must with intent rob immediately po- and thereafter abdicating reason. apartment and made the lice went to arrest. Validity Arrest Seizure II. and of of Appellant five arrested was within Weapon peaceful after a feet of the front door argument This case set down for was immediately police. entry He was together en Dorman United banc with landing the stairwell taken out onto April 15,1970,4 it decided and the knife searched where was validity too raised the issue of the of of Mrs. Burwell’s No search recovered. Dorman, warrantless As with arrest. apart- apartment The undertaken. was we remanded the District Court for Mrs. Burwell was home of ment further of the circumstances elaboration appellant did not appellant’s mother, but surrounding analysis arrest'and reside there. legal have re- issues We involved. findings Court’s viewed the of fact and conclu- The District view appellant valid was sions arrest of of law filed the District Court warrantless finding sup- adequately on the based first conclude that entry apartment police port into the overall conclusion of the the court’s consented, conclu- seizure of and second arrest U.S.App.D.C. U.S.App.D.C. 4. 140 rison United (1970). F.2d possible It formed also the de- intent rob ceased. entry magistrate’s was consent- parte sion that because the from the usual warrant, ex beyond immediate- specification ed and because ly with no apartment general of the without prompt led out rule of execution premises, police. seizure the actual search Moreover, the absence of footing appellant stands the same apartment on search within makes public place unnecessary as an in a arrest for us to consider whether required. Rouse v. warrant or to what extent this kind consent to entry purpose for the arrest confers (1966); corollary & Kimble authority Ford to search the area suspect controlled at the time of California, F.2d 927 arrest. See Chimel v. L.Ed.2d think Court’s We the District (1969). make facts of this case also findings in conform and conclusions are unnecessary police to consider the ity District with the evidence. practice at the time of the arrest Burwell, Court found Mrs. seeking arrest warrants on weekends. apartment, owned The District Court determined that this there, occupied had mother, who a room longer practice. is no Instead ar- cooperated voluntar sought rest warrants are now week- ily given incriminating ap information recently appointed Mag- ends pellant. These statements which See Dorman istrates. supra. writing signed, been reduced to and con strong probable stituted cause for appellant privacy in has police appellant. arrest than More security terest against in the of his strong that, police had ar cause to seizure which is unreasonable suspect place particular rest the at a privacy from different householder’s they ap specifically told were also security interest in the of his home visiting pellant Mrs. the habit of against to this As unreasonable search. evenings apartment Sunday Burwell’s agree Court that we with the District program. a certain watch television objec in view of the circumstances nothing There is in the record which no more is tion to warrantless arrest negative applicability in would person who ob forceful than that of a one case of the natural inference that being jects a war arrested without giving who initiates information Dorman, place. public in a we rant police, identity particu both of of a Kimble, approved the Ford & rule of suspect sus lar pect fact that the required supra, not that a warrant is par found at a can be in his home public probable in a an arrest on cause time, thereby ticular manifests his con pro place. is a The Fourth Amendment entry by police sent to an at alone, right free for the to be let tection arresting purpose time for the suspect. intrusion into unreasonable from official private intru sanctum whether on the entry by knock police in the form of a sion be into monitoring midnight of a apartment, solely or Burwell arrest door phone public any search, telephone in a conversation without not one which States, 389 general Katz protection pro See trammeled on the booth. 347, 350-351, L.Ed. vided the Fourth the U.S. Amendment for against security against It is not a shield 2d of the home warrantless privacy agents ac entry by loss of the inevitable of the Government. go out into contrary, companies one’s decision to On Mrs. aware BurwelPs mingle his fellow police probably the world ness that ar home else’s A visitor in someone she man. rive at her home and time date Amend protected Fourth really greater protection had focused will the owner the risk that she ment from than that which would have obtained entry police.5 consent to the of the When a witness ascertained, it had out appellant decided to visit presence the Burwell jury, of the that Smith apartment, right he had no to demand against privilege intended to invoke his that Mrs. Burwell make her home a sanc- self-incrimination and would refuse to tuary. questions put by answer appellant’s trial thereupon counsel. Defense trial counsel police Our conclusion that requested missing instruction, witness lawfully they acted custody when took and the court indicated its view that such and removed him appropriate an instruction since apartment inescapably leads to the con Smith “was not available to either side.” lawfully police clusion that acted persisted When counsel that he was when searched available, answered, the Court if “Not apart stairwell outside of Mrs. Burwell’s privilege.” he invokes his constitutional ment and then found and seized the Finally argued defense that the fact that clearly adequate knife. The privilege Smith had invoked his should grounds to fear that was armed brought jury. to the attention of the dangerous, Terry Ohio, objected The Government and the court (1968), L.Ed.2d agree indicated that it was inclined to scope and the search was well within the that no mention should be made as to California, authorized Chimel su why Smith was not called as a witness. pra. ruling, The court reserved final how ever, opportunity to afford defense an III. to Put on the Stand Wit- Refusal to assemble its Just authorities. ness Who Had Indicated That He closing argument the court reverted to Privilege Would Invoke His problem ruled, authority Against Self-Incrimination of Morrison v. United U.S. Appellant gave testimony that on the App.D.C. 330, 365 F.2d 521 night p. of March at around m. 11:30 counsel should “refrain from mention Raymond Smith, he encountered Yvonne by Raymond of the decision made Smith Jerry Neely Smith and in the block 1300 to invoke the Fifth Amendment.” Street, N.W., Raymond of T and that find him, “Man, just got We no error in these rul Smith said to I me ings. jury It is just got well is settled up one. I me a man the cor- any not entitled get me, going draw inferences ner. If the I am his the decision of a witness to exercise Jerry tell them that did it.” privilege constitutional whether those in appellant’s To buttress it defense that prosecution ferences to the be favorable Ingham, was Smith and not he who killed States, or the defense. Billeci United v. Neely was called as a the de- witness for 274, 87 184 F.2d 394 Neely fense. corroborated grounded only (1950). The rule is account of the conversation with Smith. guilt in the constitutional notion that He testified that had said that Smith may not be inferred from the exercise of just got he had R one on Street. Melvin privilege the Fifth Amendment but also Royal also testified that Smith had come danger invoking a witness’s looking saying Neely to him presence the Fifth Amendment in the Neely telling people had been that he had jury disproportionate a im will have killed a soldier. jury pact on their deliberations. however, high did, may The District Court re- drama of think it courtroom permit appellant significance fuse probative to call Smith as a witness when see United States Lane, (7th (1965); Weaver v. 251 Cir. L.Ed.2d 367 1967); States, Missler, (4th Friedman v. United 381 F.2d (8th 1967); 1969), denied, F.2d 155 Cir. Nelson v. cert. Cir. 397 U.S. California, (9th Cir.), (1970). 346 F.2d cert. S.Ct. L.Ed.2d 93 denied, argu- reality proba- closing make no mention their “takes the Fifth.” entirely testimony almost ment of is the lack of from a wit- tive value of event any require- ness the absence counsel knew would have invoked undercut justify Certainly his fear of Fifth Amendment. ment that the witness judge refusing charge it fact that is was correct in incrimination subject jury to cross- evidence not an inference could drawn form of be v. United from the such examination. Fletcher absence of a witness. supra. F.2d 724 Morrison United However, judge the trial could corollary given properly neutralizing these in An obvious struction, precepts should one calculated is the rule that a witness to reduce danger purpose jury put stand for will in fact draw having privilege inference from the such wit him be absence of exercise States, supra. jury. ness. Morrison v. fore the See Fletcher requested supra. only Had either counsel the court invite This would jury jury should improper inference. instruct to make an purpose draw no inference from absence Smith’s For the same no valid reason informing was not available either can be served side, it to refuse would have been error witness has chosen to exercise Appellant’s this instruction. trial coun privilege. is not That fact constitutional request sel did not such an instruction. rely is one the reaching entitled to meaningful There are tactical reasons verdict. its why elect defense trial counsel however, coin, The other side of the not to seek such an instruction.6 Had the rule not entitled that the sought in this such an instruction been ease, from a failure to draw testify inference Court, the District noted that is aseribable witness’s colloquy Smith “was with counsel that priv- reliance on his Fifth Amendment ilege. side,” not doubtedly would un available to either supra. Morrison United granted request. As inappro- Indeed, has held no han is we see error the court’s missing priate spark infer- witness dling presented of the issues when Smith against party would have ence Fifth Amendment decided to invoke his produce been called on witness privilege. criminate Pennewell v. himself. We have considered contentions U.S.App.D.C. 332, presented appellant’s counsel.7 We find for no reason reversal. In the case the District instant properly Court counsel admonished Affirmed. may

6. be eluci- The tactical considerations view of this tactical consideration fairly, in of the case as in- dated terms of the facts the case cannot viewed volving provide trial us as follows: Defense coun- a seek failure to or jury might that while a that for reversal under sel well conclude instruction calls readily plain for itself that understand error doctrine. would produce expected might in of couldn’t be The defense feel more defendant need (Smith) of a as a man who would this kind danger instruction when there is a witness deceased, testify that he killed the that will doubt ex- had appear expected not terms of istence of does have —in quiring of Here whether there was a reasonable as a witness. the existence guilt Government witnesses doubt of Smith was corroborated two —that testify appellant. Smith to other than would have called pos- not killed had the deceased. The by appellant sibility do doubt 7. other issues arousal of a reasonable Two raised require jurors Appel- discussion. the minds of the extensive neutralizing sought testify time instruc- that at been removed lant told tion of his arrest he from the court.

543 BAZELON, Judge (dissenting). Chief circumstantial indicates” Ingham. Bowles robbed Borum v. United Appellant was convicted States, 48, U.S.App.D.C. 127 49, 380 F.2d degree murder and sentenced to first 595, (1967). 596 “He was not shown gravity imprisonment life.1 The possession been charge severity sen and the property.” States, stolen Hiet me, prin tence have led under familiar 504, U.S.App.D.C. 313, 314, 124 F.2d 365 ciples, particular to scrutinize the record with Moreover, (1966) (Prettyman, J.). 505 question en care .2 The first Laboratory’s Analysis the FBI of Ne- countered this review is groid Ingham (who hairs found on support evidence was sufficient white) they determined that were not conviction. pellant’s. I. presented While the facts linking appellant The evidence with might support that a rob the conclusion killing was a statement made to his bery place, had taken fell short of Mary mother and her friend Burwell on leaving one “under no delusion as to following crime, the afternoon intent” found in as [Bowles’] possession knife found in sustaining robbery conviction in Ac days when he arrested five later.3 U.S.App.D.C. cardo United While this evidence was far over- 4, 249 F.2d 519 The evidence whelming,4 it was sufficient to connect equally consistent rea Ingham (the Bowles with deceased sol- robbery appearance sons for the dier), jury. if pros- believed every the death scene. Since element theory killing ecution’s to raise the charge proven beyond must be a rea degree first murder was that Bowles necessary doubt, proof sonable Ingham’s had taken “perpe- life while specific merely prob intent to rob was * * * trating attempting perpe- or able is insufficient sustain the convic * * * robbery.”5 Testimony trate Cooper tion. See describing the scene of the did (1954); U.S.App.D.C. 343, 218 F.2d 39 suggest Ing- someone had robbed Curley v. United lay alley. ham as he But there prosecution’s 389, 229, stopped; denied, F.2d cert. evidence, “there is no either direct or L.Ed. 1850 killing. Smith had rob, committed the § with intent D.O.Code general rule, subject exceptions to rare (1967), lesser included offense on applicable here, testimony holds charging robbery. count Id. § concerning prior consistent statements See, e.g., Lampe Wigmore, inadmissible. See 4 J. Evi- U.S.App.D.C. 69, 70, 288 F.2d (3d 1940). dence § ed. lane) ; (en Tatum v. United Appellant also contends the trial 388 n. judge allowing abused his discretion (1951), eases 614 n. 3 impeached by to be two 1957 therein. cited petit larceny convictions and a 1964 housebreaking Rayford, performed conviction. in The court 3. Dr. who Linwood impeachment dicated that autopsy, Ingham’s it would allow fatal the stated that appellant’s with these deep. in convictions rec He testified that wound was 5%" they ord because long involved dishonest con knife with a blade about 5%" duct. peachment blade) Moreover the (appellant’s court confined im had a 4" could knife appellant’s petit to most recent FBI re- have inflicted the wound. The larceny housebreaking blood, ported convictions. no hair or cloth fibers that concluding We see appellant’s no basis for that knife. found on were See United court its discretion. abused problems 4. The raised Bowles’ “con- White, U.S.App.D.C. 364, States 138 v. pp. fession” are discussed at 544-545 and (1970). 634 427 F.2d 8 note infra. Appellant 1. also received a concurrent year (1967). three to ten 22 sentence for D.O.Code § assault a defendant II. is no burden on There ambiguous prosecution’s elaborate on appel- trial allow court refused to evidence,6 risk at or inconclusive Raymond to call lant as a witness one permit the that the court will otherwise jury Smith, appellant contended who necessarily on what to “act would actually who had killed the sol- only conjecture, without surmise dier. The not allow Smith Campbell evidence.” take the stand he said he because 681, 30, 32, U.S.App.D.C. F.2d testify would not for fear of self-inerim- supra, Cooper, (1963), quoting course, not, ination. The court could 343, 346, U.S.App.D.C. F.2d compelled testify, he have Smith to once exist, it did if such a burden 42. Even priv- had asserted his Amendment Fifth adequately met it that was seems me ilege to remain silent. Ellis United through case, which in this evidence 35, U.S.App.D.C. 416 F.2d only prosecution introduced. itself contends, Appellant how- alleged mur- provided for the motivation ever, right that his Sixth Amendment tes- Burwell’s contained Mrs. der was right compel testimony included the timony he don’t Bowles had “said that against privilege his Smith assert anyone put his hands in his like jury’s presence. self-incrimination in the appellant’s “explanation” on This face.” part The fact that there were other witnesses manslaughter suggests rather than supported story that Smith Bowles’ felony to rob. an intent murder based on actually responsible was the one for the evidence Since there was “substantial position, bolsters this for it indi- hypothesis in- support reasonable [a] merely cates that Bowles was not fabri- nowas rob, intent to there nocence” cating story buttressing of” and then “jury presented issue question murder, testify. felony and the case should Yet, with Smith’s refusal to only submitted jury’s been view, the failure of Smith manslaughter.7 Hunt offense lesser appear help could make but much United protestations less credible of in- Bowles’ Austin v. See explanation nocence and only “confession” to his mother degree (first (1967) murder braggadocio poor, of a unsuccessful evi- set aside for insufficient conviction Furthermore, jury’s man.8 under the premeditation). dence joked pellant a lot and that she did not rejects contention 6. The court joke, know his confession was the Government’s evidence although wasn’t; (4) he had said it degree go adequate on first mother Bowles’ stated that told her murder, finds that only joking, he was after Mrs. Bur- “negative” harmful inference did not room; days (5) had left well three explanation” evi- “some other with killing, Burwell was Mrs. Supra at 4. dence. apartment officer at her when reasons, robbery count 7. For the same in, came Bowles but she had taken also have been withdrawn should story seriously enough report Bowles’ jury’s consideration. policeman. it to the claimed his “confession” “confession” Bowles Consideration given only complicated earnest, the fact was not but was trial (in attempt “big judge deed.” failed to instruct to take credit for a ac support #36) cordance with Model Instruction There is the record it should consider the admissions Mrs. Burwell testified at claim: only tributed to Bowles if it found Bowles asked his mother and her whether sub independent killing “over stantial had heard about cor radio”; (2) when Bowles “confessed” roborated the See Smith statements. mother, to his Burwell said 348 U.S. Mrs. replied your (1945) ; Opper “that’s business. You 99 L.Ed. 192 mother v. United you States, 84, 158, years want 348 are 35 old. You do what 75 S.Ct. 99 U.S. (1954) ; do”; to Mrs. Burwell stated that L.Ed. 101 Scarbeck v. United

545 eyes may testify grounds in- a witness decide to two er- found distinct of in ror stead. this situation: grounds pros- these relates One of to Fletcher 118 U.S. v. United misconduct, ecutorial and the other (1964), App.D.C. 137, re 332 F.2d 724 upon to rest the conclusion “seems by majority, to lied on is not that, given in the of a circumstances Fletcher, contrary. robbery convic a case, re- inferences witness’ tion was reversed where the Government weight fusal to answer added critical juvenile put had told on the stand prosecution’s to case in a form not grand jury par that Fletcher cross-examination, subject thus to and robbery. ticipated in Al him unfairly prejudiced defendant.”10 though already juvenile “had been reasoning case, may apply This subject to jurisdiction the Juve to us, training such as the one before in which now nile Court committed to a 9 prosecution,11 defense, school,” is Fletcher’s trial he asserted at attempting which obtain testi- is to his right his Fifth to Amendment refuse mony.12 numer answer of the Government’s knowledge questions concerning whether, by ous his Yet need not decide we Drawing Fletcher, of Fletcher and the on all analogy crime. to Namet 179, testify Namet v. 83 373 U.S. are based on refusal ferences 1151, (1963), case, 10 L.Ed.2d 278 en- present improper.13 S.Ct. In the U.S.App.D.C. 135, 155, fact, present is, 12. case much closer 566, denied, 856, 546, U.S.App. cert. 374 U.S. to Wilkes v. United 1897, 102, (1969), 10 L.Ed.2d S.Ct. 419 F.2d which D.C. Amendment a similar Sixth we denied 140, n.5, 9. 118 at claim, only withdrew Wilkes but because at 727 n.5. co-defendant, Morgan, as a wit his one 139, 726, quoting court) (out 10. Id. at 332 F.2d at ness he determined 1151, 10 Morgan L.Ed.2d U.S. Fifth.” We would “take ap that Wilkes’ “trial counsel concluded differing 11. The situations of the defense parently decision made tactical prosecution, recog have we appellant’s case was better served contexts, see, e.g., nized McRae forgetting Morgan than it would about U.S.App.D.C. 80, put the co-de for counsel to been (1969), is to an F.2d 1283 central make him in stand and fendant on the understanding conten Id., 136 Fifth Amendment.” voke the Goldstein, tion. The State and the Of. 419 F.2d at 685. Advantage in Accused: Balance of Crim can said No such “tactical decision” Procedure, inal 69 Yale L.J. 1149 case; present been made position asserting of a his defendant right attempted have Smith counsel Bowles’ bring Sixth Amendment witnesses invoking jury, testify even before analogous is not to that before the them, privilege lieu prosecutor attempting insinuate that missing sought in witness he thereof guilty defendant is con struction, appear lest incriminating federates refuse to answer questions. testimony concerning this “Mr. Bowles’ Fletcher, supra. See This pure much fabrica had been so Smith” equiva prosecutor’s part tactic is tion. outright lent an the defend denial of right ant’s Fifth Amendment to remain danger that a defend- some There is silent, employ and it is unconstitutional from an- misuse the inference ant a proof as defendant’s silence element potential testify. This refusal other’s beyond convict a reason needed to by jurors’ however, mitigated, is abuse California, able doubt. Fontaine v. passing,” skepticism any “buck natural U.S. 20 L.Ed.2d 154 S.Ct. prosecutor’s right to demon- (1968) ; California, 380 Griffin v. person accused that the strate to the L.Ed.2d on whom the defendant someone (1965). By contrast, when accused friendship, (through prevailed or has suggests culp another is the injury) court and to come threats testify party, able other’s refusal to testify. then refuse to merely being used corroboration. Raymond presence Smith mother the of her friend

tire defense was alley. responsible for No he in an was had killed soldier jury per- description the was not of either the soldier or the murder. Since the testify (or alley refuse mitted to hear Smith or the reason for or circumstances killing grounds surrounding do of self-incrimina- the included so on was tion), Appellant court’s failure the testified I the trial believe statement. jury joking mother to instruct the that no inference when he told his was man, heard should be drawn from Smith’s absence he had that he had killed Smith, plain killing Raymond error. stand was witness from one night question The was need for such an instruction on Smith the great degree especially bragged this in a first murder the victim guilt just got case, stating: “Man, case so one. where the evidence was I me just got up thin. The indicates that court This record the I a man the corner.” me story appellant unfa- apparently aware that no inference below was the same was drawn, accused should his police vorable the had from time of told the only through probably fully in- but on arrest, and it was corroborated failed— convey point by advertence—to jurors. testi- trial two other witnesses my view, say In too this defect is same heard fied thing. had Smith important for us overlook. the circumstances Under gone the case should have doubtful that III. Certainly all. one would to the Finally, appel- I since conclude that uneasy if this conviction feel less about lant’s conviction should be reversed evidence, some there at least were preju- insufficient evidence and for the mother, appellant’s to his than statement by dice caused trial court’s failure Compare support it. Smith regarding from to instruct the inference 75 S.Ct. 348 U.S. absence, I do not reach witness Smith’s (1954); Opper v. United 99 L.Ed. 192 question whether arrest 89-90, 348 U.S. (and search) his the incidental moth- 99 L.Ed. 101 apartment proper er’s was in the absence any event, to a entitled re- of an arrest or warrant. search On Raymond produced Appellant new trial. mand, the District found that Court allowing Before as a witness. Smith explanation no there was for the failure jury, trial testify before the Smith to warrant, judges to obtain since were as- Smith would determined that court issue available at the relevant times to rights Amend- Fifth under the sert I a warrant. remain unconvinced killing. questioned about ment Whereupon if justifications two which are advanced allow refused to today: (1) police the court that the jury and produced him to be subsequently changed proce- their refer not to instructed counsel dures, po- that one who tells the arguments closing in their matter usually lice that visits his home subject jury. on No instruction gives aat certain time con- “constructive Thus given the court. searching sent” to permitted draw note, however, person. I ab- appellant’s defense ference miti- sence of a warrant in this case was pro- he would framed—otherwise gated full state- somewhat written duced Smith. ments Burwell of Mrs. Bowles Mrs. Pretermitting question prior which existed to the arrest right place Smith appellant search. jury, at the before the stand the witness very Judge WRIGHT, J. SKELLY Circuit an in- appellant was entitled least (dissenting): any in- neutralize struction pro- arising failure connecting only ference much majority admits duce him. with this crime is his statement says such an that in the future given. mean- In the struction should be appellant has a life sentence time if help I cannot but believe serve. given in had been

such an instruction ease, jury, admittedly borderline juror, been one or at least beyond a reasonable to conclude

unable guilty first doubt degree murder. respectfully

I dissent. Appellants, al.,

Louis B. BERMANet Anthony Jacques, Mr. Rock Robert Melvin GELMAN. ville, Md., appellants. William Mr. C., Donnelly, Washington, No. also en 24070. D. J. appellants. appearance for tered an Appeals, States Court Rockville, Donahue, Mr. Edward C. Circuit. District Columbia Miller, Md., E.Mr. Gwinn with whom Argued Nov. Md., brief, Rockville, was on Dec. Decided pellee. Judge, FAHY, Circuit Before Senior ROBB, Circuit and LEVENTHAL Judges.

PER CURIAM: alleges: complaint made Plaintiff Beauty Salon call at the a business Apartments. He Towers Cathedral Avenue parked Mexico auto on New side en- left entered walking Mexico, en- New trance on being Avenue. on Cathedral trance entire determined Plaintiff abutting Ave- New Mexico sidewalk building slippery side nue ice, decided and hence and covered walking over reach his auto reducing walk- grass the amount sidewalk. ing Avenue Mexico on the New m. on Jan- injured 9:30 a. about He was defendant’s uary negligence accumula- permitting

Case Details

Case Name: Daniel J. Bowles v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 20, 1970

Citation: 439 F.2d 536

Docket Number: 21948_1

Court Abbreviation: D.C. Cir.