Eddie M. Harrison v. United States of America, Orson G. White v. United States

may Act, person be who dures which standards the release dangerous mentally be con- can extending Mullen con- ill and Mrs. to during pendency the civil of rights 1964 Act fined which finement civilly proceedings. only guarantees com- those commitment upon the confer cannot mitted.34 Affirmed. authority to of General Sessions Court for civil com- impose reserved conditions Congress has proceedings, since mitment juris- given exclusive Court the District proceedings.35 over such

diction import civil stand

To all (a), and thus into ards Subsection sug difficulties constitutional avoid the Herold, gested by we would Baxstrom HARRISON, Appellant, completely that section Eddie M. to rewrite have Hospitalization of the Men as the as well willing tally not to do 111Act. areWe America, UNITED STATES of Supreme has said: Court As the so. Appellee. that “[a]l- It must be remembered WHITE, Appellant, Orson G. though strain to this Court will often legislation as save construe so America, UNITED of STATES attack, against it must constitutional Appellee. carry point will not not and Nos. perverting purpose of a statute of » * * * rewriting judicially it. Appeals United States Court of ** * [367 District of Columbia Circuit. Scales States 1469, 1477, 203, 211, Argued Nov. put matter an- L.Ed.2d To 782]. May Decided way, not consider will other Court . Rehearing Denied En Banc question of whether Con- the abstract Aug. 1, 1967. might gress a valid stat- enacted must ask ute but instead whether Congress did will enact

statute

permissibly ren- bear a construction

dering it de- free from constitutional State, Secretary (Aptheker of

fects. (1964)). L.Ed.2d (a)

thusWe conclude that Subsection inapplicable appellee. If the Gov- Mullen,

ernment desires Mrs. to commit pro-

it must institute civil commitment

ceedings in so. The 1964 order to do emergency provides proce- adequate

Act 19, supra. ability procedures, footnote not See these we need (a) decide Subsection can V, (Supp. 1966) 35. D.C.Code 21-501 § de commitment, where read to authorize purposes “court” for of civil fines com guilty by reason verdict mitment States Dis “United objection, insanity is entered over trict Court for the District of Columbia.” purpose examining the limited pendency treating person during D.C.Code §§ 21-521 —21-528 (Supp. V, 1966). proceedings. Because of the avail- civil commitment Washington, Prather,

Mr. Alfred V. J. court), ap- by (appointed for D. C. pellant 20,280. in No. Washington, George Thomas, Mr. J. by court), (appointed for

D. C. 20,281. appellant in No. Kenly Webster, S. Asst. U.

Mr. Robert Atty., G. David Messrs. with whom Nebeker, Q. Bress, Atty., U. and Frank S. brief, for Atty., on the U. were Asst. S. appellee. Judge, Before Senior Circuit Bastían, Robinson, Circuit and and McGowan

Judges. III, ROBINSON, W. SPOTTSWOOD Judge: Circuit Appellants, and M. Harrison Eddie co-defendant, White, Jo- and a Orson G. seph Sampson, in Octo- R. were convicted George felony-murder ber, 1960, sentences, H. “Cider” Brown.1 Death memory “Whoever, being purpose tiary, kills of sound and or so to do without attempting discretion, purposely, perpetrating either or in kills another another in any arson, premeditated perpetrate in malice as defined deliberate or mayhem, rape, by poison, perpetrating section 22-401 or means or or robbery pun kidnapping, perpetrat- attempting perpetrate any or in or offense any by peniten- attempting perpetrate imprisonment house- ishable mandatory, imposed.2 jury, then were elation of the were life sentenced to Government, imprisonment. case submitted accepted jury, Brown was that grounds As reversal killed was shotgun a blast Harrison’s urge (a) speedy denied a attempt to course of an (b) the admission of their perpetrate robbery espoused by the improper, second-trial appeal pending, it trio. While an (c) that there was insufficient light came to one Daniel Jackson robbery progress when Morgan, layman Oliver Wendel Holmes homicide felony-murder. occurred to convict them impersonating a of the District member reject We discuss but bar,3 represented Columbia contentions, these and affirm Har- as to throughout Sampson the trial however, record, rison. The reveals stages,4 post-verdict during its serious error the admission this in discovery a April, In to a new trial.5 that led portions trial of appellants Sampson and were gave trial, requires at the and first again guilty, found recommend- reversal of conviction. his each, imprisonment life for which they were These convictions sentenced.6 I they were reversed because statements appellants’ The contention that police had made im- officers had been right speedy Sixth Amendment to a properly admitted.7 respected predicat trial8 has not been is trial, May, 1966, The third in from broadly six-year upon lapse ed be emanated, atypical. appeal which this tween the homicide and the third participat- Since some of witnesses purpose but for we cannot treat ing earlier had died or not either could litigation spans is in a vacuum. “There located, presentation be the Government’s no touchstone of time which sets a fixed reading largely consisted into evi- in automatically period re maximum testimony given dence at the second of quires application of Amend the Sixth by appellants trial and the wit- absent ment and of the indictment.” dismissal chief, nesses. of its case in At the close Rather, right speedy trial of a “[t]he judgment judge of the trial acquittal directed necessarily is is consistent relative. It Sampson’s in denied favor but delays depends upon with circum Offering by appellants. similar motions rights stances. to a defendant. It secures defense, appellants no evidence in once rights public preclude It does of and, more on recommen- were convicted trial. After disaffirmed motions breaking using with or while armed counsel, new guilty therefor filed we rein dangerous weapon, is of in murder sponte appeal and sua vacat stated the degree.” the first D.C.Code 22-2401 § ed.). (1961 with count, charging ed direction the convictions Another premeditated murder, a new trial awarded. See Harrison Brown’s was dis- during missed on the Government’s motion 359 F.2d 216-217 the trial. (1961 ed.). in D.C. Code 22-2404 was amended § § D.C.Code 22-2404 1962 to authorize these sentences. Morgan 3. See , infra, note 15. cert. 13 denied U.S. prosecutions, 8. “In all criminal the ac- L.Ed.2d speedy enjoy cused shall to a ” * ** U.S.Const, public 4. Harrison’s trial counsel died trial before the hearing post-ver- amend. VI. determination Morgan represented dict motions and him Hedgepeth ensuing proceed- Court District App.D.C. 291, ings. first in We order that remanded each of appellants might the three for a move new determining prac- justice.” the ideal crashes head-on with the inSo tical,” appellants’ position complained delay consti- reflects assumes recognition exigencies proportions, the cir- examine but scant tutional we 11 closely appellate That ascertain wheth- cases. review abnormal cumstances December, “arbitrary, oppres- argued purposeful, appeal was first er it was panel One of court. sive before vexatious.”12 involved, questions the several difficult appeal, On second decided, important to re- was so pressed respect a similar claim quire court. entire determination the time the case had consumed to reargued June, In the cases were point. unanimously rejected year con- and in December of that expressed repeated the reasons then The combina- victions were reversed. Viewing additionally pe- below.13 panel and en banc effect of the tional ensuing, riod since we find no reason to subsequent use was to decisions bar differently. now conclude incriminating extrajudicial all argument present focuses by'appellants.15 made approximately years two interval during pend- appeal necessarily consumed which the second The time ing. undoubtedly spot unraveling complex ultimate Here where issues whose “a Haubert, other, 87, short, 77, 10. the District Beavers v. 198 49 one basis or U.S. on occupied de- L.Ed. of 950 with a series was Court motions, purportedly sub- of some fense delay completing prose 11. in “Whether stance, procedural, all contribut- some but * * * an un cution amounts to delay. ing to deprivation rights constitutional of de stemming unique problems “The pends upon the Pollard circumstances.” Sampson’s place and White’s from first 361, States, 354, v. United 352 77 U.S. gave Morgan engaged impostor having the 486, 481, S.Ct. 1 L.Ed.2d 393 dilatory No moves. to the several rise Ewell, See v. United States also prejudice Nor were in fact was shown. 116, 120, 773, 15 L.Ed.2d 627 deprive the such as to the ‘circumstances’ appellants States, Hedgepeth v. United su rights.” Har- of constitutional 9, pra 687; 364 F.2d at v. note Smith 5, States, supra 123 note rison United States, 38, 41, U.S.App.D.C. United 118 233, U.S.App.D.C. at 217. at F.2d 359 (en 1964). 784, 331 banc F.2d U.S.App.D.C. States, King v. United States, 11, supra 12. Smith v. note United bane), 567, (en 193, 195, F.2d 41, U.S.App.D.C. cert, denied 359 U.S. States, supra also Pollard United L.Ed.2d note 77 S.Ct. 481. “Following appeal, they States, supra their first could note 15. Harrison United they panel tried in the Fall if been of 1961 held that written statements 5. The sugges- by po original had followed this court’s taken from three defendants they They jail tion that move for trial. new classification officers lice and noted, supra, Mallory so, and as refused to do v. 1356, banned court, sponte, obliged sua to re- and, appeals Killough (1957), on instate the June original (en vacating U.S.App.D.C. to order banc enter an F.2d 241 judgments 1962), of conviction. That order F.2d 929 subject July filed in District bane Court of en consid assigned admissibility The District Court then the case By of oral state eration was the days for trial on that after October a few ments made prior hearings eighteenth birthday date there had been on motions week but a court-appointed juris of various counsel of to waiver to the District Court withdraw; affair, leave Harrison had no at- which occurred diction over David, torney; Attorney juvenile. panel appointed held Oc- while he sought properly in tober thereafter received con- been that contending majority that had no tran- but a of the full court tinuance evidence trial; Harling script of the first Harrison then otherwise of ruled basis Attorney discharged; moved David that jeopardy 1961). (en to dismiss on double banc motions grounds argued; had been filed and rights resolution vindicates II hardly accused can be said constitute At the second after the Govern- purposeful delay. oppressive or areWe post-arrest ment had introduced the study ques- accustomed to careful statements later outlawed on the second presented us, particularly tions to liberty where appeal,19 appellants took themselves stake, human life or is at witness stand to relate events calculated surely case has tolerated no devia- their Govern- establish innocence. The ingredient tion. is or- essential “[T]he ment, part of as trial, its case chief derly expedition speed”;16 and not mere portions third introduced indeed, requirement unreasonable “[a] testimony gave appellants at the second speed would have a deleterious effect both register objec- appellants trial. To this upon rights accused and tion, asserting they testified at the ability society protect itself.”17 only second trial the statements because comprehen- One has but to examine the thereat. been received brought opinions appeal sive the second appreciate forth to the court’s task The Government’s submissions foresee the risk unwarranted haste appellants’ second-trial did versions might appellants’ dis- have worked to privilege not violate their to remain silent advantage. no And there is hint that at the third.20 Nor do authoriz the rules any subsequent phase radi- of this case prior-trial introduction of any implication. ates constitutional exemption given by feature an of that an accused.21 And while trans wholesale likely reasonably Nor do we deem it scriptive decidedly renditions are less possible could have been evidentiary presenta desirable than live prejudiced by only delay.18 The tions, practice we cannot chide the where suggestion concrete is in that direction longer of witnesses no absence of some of the Govern- indispensable proof available is resulting ment’s witnesses and the need elements of the ease and Government’s prior testimony jury to read their to the purpose. confined to that We thus are precluded additional cross-examination. brought appellants’ to contention that appellants had, utilized, op- But the involuntary their because portunity question to those witnesses by it was incited the admission of fully during trial, subsequently post-arrest the second banned state ments, they and on insulated present third trial that basis was were free to to against prosecutive the third service at prior cross-examinations trial. but elected not to do so. We are unable identify any appellants to harm conse- to system upon Our federal bestows quent upon passage of time. not, testifying an accused the choice or of States, 1, 10, v. Smith United App.D.C. 355, (1946). 158 F.2d 651 Compare 79 S.Ct. L.Ed.2d States, App. Milton v. United D.C. 110 F.2d 556 also See supra Ewell, 17. United v. States note States, (4th 252 F. Orth 86 S.Ct. at 776. 1918); States, Cir. Heller v. F. Ewell, supra 18. See United States v. note (7th Cir.), 2d 627 cert. denied 286 U.S. 773; 383 U.S. at ; (1932) L.Ed. supra Hedgepeth note F.Supp. Grunewald, United States 9, 364 F.2d at 687. (S.D.N.Y.1958); People Corbo, (1962); A.D.2d 234 N.Y.S.2d 662 supra 19. See note 15. Rafferty State, 91 Tenn. 16 S.W. U.S.App. 20. Edmonds v. United McCormick, generally 373, 375-378, D.C. 110- Evidence, (1954); § A.L. Annot. 5 (en 1959), banc cert. denied 362 U. R.2d 1404 S. supra Warde v. United 21. See the cases cited note 20. says protections. permits accounts from the wit Their second-trial what against episode of their to if not the fatal lost none stand used him of ness be coercively. admissibility merely qualities because of elicited The record contains open suggestion or were court use of the state were rendered no that the capabil- a maneuver induced an evaluation ments the second trial was proof wring appellants; from con- from ities of evidence Government’s aught appears, the Government’s vict. missing objective supply ele sole was to the re-read Nor do consider we Here, situations ments of case. unlike its testimony to be portion appellants’ been where duress of sort has some proscribed by “fruit the familiar found, press exerted no the Government may as poisonous rationale. We tree” ure,22 im inducement23 and offered no assert, sume, their appel posed improper condition no gotten into post-arrest not declarations There lants’ to muteness.24 trial, they would at the second counsel,25 and, so uninhibited access stand. have taken the witness not complete perceive, aware far as we can ascertaining however, inquiry, vital legal rights.26 been re have ness We improper productivity as between ease, no our own intensive ferred to appel of the statements admission holding none, research has located countervailing testimony is not lants’ strength is case of the Government’s receipt of the state for” “but vitiating com of testimonial itself form been ments the would pulsion. “ ‘whether, granting given, establish but illegality, evi primary ment of may profitably to an analo- resort objection made instant appel- dence which gy quite persuasive. If that to us is by exploitation of that come at has been lants, present, and with their counsel sufficiently illegality means pre- instead cognizant presumably of their thus pri purged distinguishable be voluntarily rogatives, spoken extra- ” 27 mary taint.’ judicially, would have their utterances been admissable on Government’s note, is, again not even There so, proffer. we think would This Govérnment, whisper in utiliz- attempted clear, if remarks had even the second strong or even in the face exoneration elicit purpose to motivated overwhelming guilt. appellants. We are response indicia testimonial when, held, unable to from these results Moreover, dissent several times as we have predicates with same the case testimony the does of a live witness the footing us, evidentiary made at before statements were stand on the same judicial trial, were ob- where and immutable “an inanimate legal by panoply of by.”28 em- ject illegally surrounded the full We come Pate, Compare, g., 1336, Washington, 503, 22. e. Reck v. U.S. 367 S.Ct. 83 373 U.S. 433, 1541, (1961); (1963). 81 S.Ct. 6 L.Ed.2d 948 L.Ed.2d 10 513 Payne Arkansas, 560, v. 356 U.S. 78 S. Compare, g., Davis v. State of North 26. e. 844, (1958). 2 Ct. L.Ed.2d 975 1761, Carolina, 737, 16 86 S.Ct. 384 U.S. Spano People Compare, g., e. of State L.Ed.2d 895 315, York, of New U.S. S.Ct. 360 79 Wong Sun v. United 1202, 471, 488, L.Ed.2d S.Ct. Compare, g., Garrity (1983), quoting Maguire, e. v. State of New Evidence Jersey, Guilt 221 (1967); Spevack Klein, L.Ed.2d U.S.App. States, 126 28. Brown 3S5 U.S. L.Ed.2d 310. December D.C. also McLindon Compare, g., U.S.App.D.C. 283, 285-286, e. Escobedo v. State of Illinois, 238, 240-241 12 L. Smith (1964); Haynes Ed.2d v. State of phasized that the an “is indivi- III witness personality dual human whose attributes scrutinize to now the evidence test will, perception, memory and voli- legal sufficiency support its Harrison’s tion interact what testi- determine felony-murder. Gov- conviction The mony give.” he will his testi- While theory, reiterate, ernment’s we was mony would, course, impermissible be conspired to he and his co-defendants by capitalizing prior if obtained gality,30 ille- on Brown and shot rob Brown that Harrison question always “how plot. attempting to while consummate great part particular manifestation testimonially retort, Harrison’s made personality’ played of ‘individual human charge second was that receipt in the ultimate fatally fired which wounded Brown was question.” accidentally approached for Brown as he shotgun. there a loan Since Here the role of the “individual human shooting living eyewitnesses no to the personality,” think, paramount. we was White, possibly save Harrison by What is true aof exercise volitional largely circum- case Government’s testimony may a witness whose com- be stantial. pelled must, coercion, the more absent be Shortly after enjoys so a. m. on March as to an 9:00 accused an abso- who body just privilege well, inside stay and, Brown’s found lute silent professional front door of competent the door, his residence. advice of closed, opened inwardly, which privilege counsel as to whether the is to wedged by body propped admittedly Appellants be renounced. face-first against it. The window door made a conscious decision to seek tactical originating acquittal by taking been ternally ex- shattered force the stand after their through in-custody in, and there was a hole statements been let powder the window shade. There were appreciable record reflects an burns on Brown’s face and the window interval of mental interaction Brown wound shade. had died from a processes preceding and the this decision single shot- inflicted from a blast testimonial It acts themselves.32 would through gun. charge had traveled facing be rash to assume that defendants along an his head front to back penalty upon death conviction would veering approximately horizontal course slightly from unduly testify be influenced favor- to left. ably to the either the Government homicide, night ap On the before the prior introduction of confessions pellants Sampson a black borrowed procurement previously. years their three 8:00 from a friend. About Buick sedan here, In the deem the circumstances morning approxi o’clock on the next — relationship ad- between the erroneous mately prior hour death— an to Brown’s appellants’ mission of Buick, short reassembled in the their the second trial to ly thereafter were linked to the deceased. dissipate “so attenuated as Young, witness, A Government Thomas taint.” that seated with Brown in a restaurant 879, (1963), F.2d States, supra 324 cert. denied 881 31. note McLindon v. United 954, 1632, 28, U.S.App.D.C. 12 L.Ed.2d 2, F. at n. (1964); Payne States, United 2d 241 n. 2. U.S.App.D.C. 97-98, supra States, See Brown United note cert. denied 368 U.S. (concurring opinion). F.2d at L.Ed.2d S.Ct. States, Nardone United supra Smith note 84 L.Ed. 307 324 F.2d at 881. e. g., See, Smith v. U.S.App.D.C. 160, 344 F.2d 545 through charge looking trajectory of Brown’s the morning Sampson noticed shotgun suggests Young head the when that Brown left Brown. When raised, only as Har- Sampson fired had not been restaurant, followed and the nearly said, horizontal in a Buick rison but was a black a distance walked short position However at shoulder level. seated. While men were in which two Young may be, Brown, it immaterial conversing saw is with intentionally shotgun discharged talking inside was Sampson men to the robbery accidentally then was off if in fact a Brown drove Buick minutes before being attempted.34 deem And alone. support a proof legally sufficient appreciably undisputed It that not predicated that thesis verdict companions later Harrison and ar- his such was the case. in rived at Brown’s house the Buick. tending transpir- There was evidence One then to show version events that both money. supplied Harrison and was Harrison’s tes- White needed own timony. contemplation proposed Harrison of a from to borrow In loan money upon pawn a his Brown. used mari- Brown to obtained juana shotgun, weapon cigarettes, unemployed. placed had in was he Admittedly, morning, gotten together Buick unaware both had earlier that Alighting day job. earlier that the fact it loaded. to look a Brown that was money, house, he removed shot- and that fact known Brown’s was gun clearly suggested. is also carried Harrison knew from the car and it at pre- that Brown viously re- side sponded Brown’s front door. Brown was “fence” and had knock, capacity. opened the door dealt with him that to his and, $2,000 learning pock- About the transaction Harrison found in Brown’s it, Young et mind, after his had in see on death. that said “Let me come testified money he Entering, knew in.” gun raised that Harrison the shot- Brown had on his person day. that Brown from his side order might suddenly it Brown examine but The evidence indicated also circum- (cid:127)pushed glass The the door closed. stantially an intent to rob Brown. Har- shotgun door struck the discharge. caused rison, Sampson, with White and had bor- ran, colliding Harrison then night rowed an automobile the before. White who stood outside on jurors Young’s could believed have steps nearby. rejoined Sampson in Both Sampson that he at the saw together they off. Buick made restaurant and found he then They might Brown under surveillance. Harrison’s But while accepted also have the inference from largest segment was the of direct evi Young’s testimony bearing affair, dence Govern They the other two Buick. men in the case, ment’s Har and to some extent something could have concluded that in- defense, rison’s disclosed circum own volving appellants and the deceased story impinging upon stances afoot. indicating related. There is shotgun approached aimed at Harrison had been Brown’s resi shot, through shotgun the dence with Brown. The fired that was loaded.35 gaping, easily window, weapon macer It front door left a that could been ated wound in side Brown’s concealed under his coat.36 Har face, rison was six feet tall. said that with him Brown White was residing supra, 1; 36. A Government witness across note supra street note from Brown’s house saw male doorway immediately 17, at n. out at 236 n. 359 F.2d 220 17. come of Brown’s something put after “and under shot States, Compare 35. v. 102 Accardo coat, gun, his a and ran down street 4, (1957), F.2d 519 249 * * * 787, 943, cert. 78 S.Ct. denied 356 U.S. (1958).

212 excerpts testimony given the vestibule of Brown’s residence when from the he had Sampson the fatal shot was fired. con- at the first fact trial. The that he was cededly park- represented by the remained in automobile first trial nearby. shot, impostor Morgan spotlights ed neith- problem: After Brown was ap- stopped er to render Harrison nor at the trial the instant from which possible aid, peal taken, instead immediate evi- but took the Government’s ig- flight.37 jury dentiary presentation was not to The bound embraced testi- robbery planned mony given nore these earmarks of a trial White had the first co-conspirators represented two third when he mem- was not a standing by getaway And car. with the ber bar. explana- jury rejected if the Harrison’s Amendment The Sixth shooting tion ac- that committed pledges prosecu all criminal “[i]n circumstances, cidentally under innocent right tions, enjoy the accused shall support a to was sufficient * * * to of Coun have the Assistance upon predicated verdict the view adjuration sel for his defence.” This robbery progress. occurred was in while guiding counsel necessitates “the hand of inquiry calledfor crucial every step against proceedings is not 39 whether we ourselves are convinced him,” including giving of effec “the beyond a reasonable doubt of Harrison’s preparation tive aid in the and trial guilt proof but on the adduced de the case.”40 It clear that is these jury legitimately could have been. mands are ac not satisfied when the making adjudication Our role in “is by layman “represented” is mas cused querading * * * exhausted when [we determine] attorney;41 it qualified aas permit that the evidence does or does right, precious or is unthinkable so guilt beyond the conclusion of reasonable grave responsibility, so can be entrust operation doubt within the fair of a ed one been admitted who has not reasonable mind.”38 We conclude law, practice no the- intelligent matter how as to Harrison it does. may be. he well educated where, here, particularly This is so IV accused is on for an offense trial pecul- We turn next to considerations very conviction of his life could which iarly affecting taken the White. He had become forfeit. stand as a behalf at witness his own During both of the first two the constitution trials. Failure to heed enjoy second resorted al admonition accused Government that the parts negates trial at the first assistance counsel completely jurisdiction proc in an effort to cast doubt on what the court’s second, void, portions proceeding said oc at the eed.42 and the vitiated; his second-trial read to the currences therein are trans naught. legal pirations go at the third trial included sizeable otherwise States, (5th Ellis, 37. See Miller v. United F.2d 549 Cir. McKinzie 1961); 287 App.D.C. 344, 45, (1963); State, Ga.App. F.2d Hunt 57 320 767 Jones v. 1, 4, Buchanan, (1938); v. United 115 S.E. 195 316 Smith 652, (1963). Ky. 44, 5, 316 145 A.L.R. F.2d 163 S.W.2d State, P.2d Jackson Curley U.S.App. State, (Okl.Crim.1957); Martinez v. 232, D.C. 160 F.2d cert. Tex.Crim. S.W.2d 66 denied 331 U.S. Dowd, also Achtien v. L.Ed. 1850 1941). (7th Cir. Alabama, 39. Powell v. State of U.S. 458, 468, Zerbst, Johnson 45, 69, 53 S.Ct. 77 L.Ed. 158 (1939); Cop 82 L.Ed. 58 S.Ct. U.S.App.D.C. 103, lon v. United Id. at (1951), 759-760 Representation denied 342 cert. unlicensed “counsel” deny rights was held to constitutional L.Ed. that trial, stated White implicit in our At second No less than this was why wanted to shortly Harrison disposition after he did not know of case Mor- this he did that gan’s deception Brown and maintained uncovered as we see was anything ap- place into upon Harrison second not see occasion to observe anything of seat back peal.43 from the remove to Brown’s Harrison went the car before It be doubted cannot with countered The Government house. evidence introduction into Government’s object testimony an that he had seen during a of made the statements White that on its placed seat back period im counsel he was without when shot- that it was a he had removal noted rights pinges renders the Constitution gun. the second testified at White also ago, century quarter A of inviolate. which house trial that he could see States,44 Court, in Wood v. into, confronted and was Harrison went appraised a denial of the effect of indicating previous testimony his privi upon to counsel the accused’s later he had seen house. White lege against held self-incrimination. We that he did testified at the second trial guilty plea of entered that a withdrawn Harrison into the vestibule not follow pre at a an uncounseled defendant prosecutor house, and of Brown’s hearing improperly liminary receiv was brought at the made forward statements regarded trial and ed in evidence at the gone suggesting first trial he had key factor of counsel as a absence Finally, swore to the White vestibule. determining plea was vol smoking at the trial that he second was recently Quite untarily the Su entered. morning marijuana the homi- on the of Maryl preme Court, of in White v. State cide his confused. and that senses were through and,45 result reached the same responded The Government with White’s application Amendment of the Sixth testimony omitting the first trial all subsequent situation, and an identical marijuana or reference to disorientation. epitomized Amend decisions have impact It cannot be doubted that evidentiary upon uses ment’s ban his first-trial statements White’s a time accused at statements made an second-trial assertions innocence not accorded when he entitled to but was devastating. credibility Four was competent counsel.46 the assistance of story aspects im- material of his pugned Har- : that he did not know that resulting prejudice admis- from shotgun, initially rison had a that he was testimony is sion of White’s first-trial unaware of the fact that went Harrison apparent. strongest house, not in Brown’s was linking trial to the crime third shotgun fired, vestibule when the his own the second and his mind was befuddled mari- there without which is little juana. damaging state- And each place immediately him at the scene ments been elicited on direct White’s shooting prepara- or to him involve by Morgan, examination his erstwhile tions to rob Thus it crucial Brown. protector. to the Government’s case that White’s any exception to find are unable discredited, second-trial which would eliminate this situation impeaching application from a conventional played governing the first trial a central role. constitutional Cer mandate. supra 43. note 46. Massiah v. United F.2d at 5. 123 12 L.Ed.2d 246 Illinois, supra Escobedo v. State note Arizona, 25; Miranda v. State of 44. 75 A.L.R. 1318 45. 373 U.S. 10 L.Ed.2d

214 represented by

tainly created the fact that White. Harrison was none is originally competent, attorney the statements licensed offered at exculpatory purposes point were first trial since until some after the evi- ultimately Moreover, Nor to incriminate.47 dence all in.56 used none they “sweeping Harrison’s claim[s]”48 trial was trial, used or “collateral so “remote from referred to at matters”49 the second so nothing guilt”50 got jury as to fall within issue therefrom before the authorizing impeachment principle predicates the third. The factual disposition for our an otherwise inadmissible statement as to en- White are guarded tirely lacking in limited and circumstances.51 as to Harrison. We have noted that there was statements, White’s first-trial how- general only protest on broad constitu ever, read to at the third grounds any tional to the admission of implicated extent we previous of White’s account, hereinafter mark. On this we objection third trial rather than directed pondered question have whether this specifically portions to the we find in requires reversal Harrison’s convic- admissible or to the reasons have we decided, tion. We have for reasons now naturally stated.52 And we are reluctant explained, to be that it not. does to reverse the conviction of a defendant might rest our conclusion in this juries guilty. three have found to be regard upon application per prin- But neither an of these considerations ignore mits ciple us to serious inherently and harmful un- 53 54 proportions error of constitutional having guilt trustworthy relevance involving the admission of harmful evi simply of an accused is not excludable capital dence in a case.55 because was violation elicited rights of Nonetheless, another.57

V expanded investigation broadly our There is no occasion for extend enough satisfy ruling just Harrison the ourselves that White’s made as (1964); supra States, Arizona, 47. See Miranda v. Williams v. United 105 State of 46, U.S.App.D.C. 41, 444, 1602; (1959); note U.S. 263 F.2d 384 86 487 States, U.S.App.D.C. Wong States, supra Mills v. Sun v. United United 97 note 131, 27, (1955); 487, 228 645 v. 371 U.S. at F.2d Robertson 83 S.Ct. 407. States, U.S.App.D.C. 185, United 84 171 States, 62, 48. v. Walder United 347 U.S. (1948). F.2d 345 65, 354, (1954). 74 S.Ct. 98 L.Ed. 503 Atkinson, 157, 54. United States v. States, U.S.App.D.C. 49. v. Tate United 109 391, (1936); 56 S.Ct. 80 L.Ed. 394 Ko 377, (1960). F.2d 381 283 States, 898, v. (9th hatsu United 351 F.2d 901 1965), States, 20,091, n. 50. 4 Cir. cert. denied Carter v. No. 384 United 1011, 1915, D.C.Cir., 2, U.S. 16 86 S.Ct. L.Ed.2d 1017 March 1967 at 2. See also (1966). Bailey States, U.S.App.D.C. v. United 117 241, 542, 328 F.2d cert. denied 377 U.S. 52(b). Naples 55. F.R.Crim.P. See also 1655, 12 (1964); 972, 84 S.Ct. L.Ed.2d 741 States, U.S.App.D.C. 123, 128, United 120 Barkley States, U.S.App. v. United 116 508, (1964); 344 F.2d 513 Stewart 1, 804, D.C. n. F.2d 335-336 323 805- States, U.S.App.D.C. 51, United 101 247 n. 1 806 42 F.2d supra 51. See cases cited notes 48 to 50. supra note States, Inge See also v. United Long States, U.S.App. 57. See v. United 124 App.D.C. 6, (1966); 356 F.2d 345 John- (1966); F.2d D.C. 360 834 Bow States, son v. United States, man F.2d (1964); F.2d Brown v. Unit- (9th 1965), Cir. cert. denied 383 U.S. ed F. L.Ed.2d 212 2d 543 (McNaugh Wigmore, Evidence § See F.R.Crim.P. 1961); McCormick, ton rev. § Evidence Compare Jones See Oliver U.S. U.S.App.D.C. 284, App.D.C. 302, cert. denied 1964). (en banc Judge, preju- Before Chief Bazelon, not have could concessions re-read McGowan, Wright, state- first-trial Danaher, Burger, White’s diced Harrison. findings Circuit and Robinson, that persuaded Tamm, could have ments Leventhal Judges, shotgun the in transported in Chambers. Harrison him took it that he with Buick and house, events were these but Brown’s RE- FOR ON PETITION ORDER disputed by Nor could Harrison. HEARING EN BANC testimony was to whether he

White’s marijuana day smoking Brown the on PER CURIAM. detrimentally Harri- died have affected peti- appellant’s On consideration of at occurred son’s accounts what rehearing banc, it is tion for en doorway. Brown’s ap- en banc that Ordered the court query then, only remains, the There pellant’s petition denied. aforesaid harm- could have been whether Harrison first-trial admission ed White’s Judge BAZELON of Chief Statement house he in the vestibule of Brown’s why petition for rehear- he believes the shotgun erupted. when the granted. ing en banc should be testimony Har- third trial heard the the gave trial rison at the second Judge: BAZELON, Chief the time was alone the vestibule defendants,1 previous the At a trial of flight White a and in his collided with their several of steps. Government introduced on short distance outside the incriminating The defend- recognize may statements. have that this discordance They ants testified their own behalf. tendency Harri- had to undermine some convicted, appeal re- and were credibility suggest and to a common son’s trial on and remanded for a new rob, procliv- versed its scheme to but we assess ground that the statements been respect as trivial. ities either illegally trial now obtained.2 At new sustainable verdict as to Harrison was did not tes- under review the defendants quite apart any of con- element tify, read into but the Government spiracy, state- to which White’s earlier testimony their tangentially record sections of only weakly ment could and again They prior trial. convicted. were contribute. And Harrison’s rejected appeal, In their court others, seriously conflicted with that of testimony was inad- contention that their internal incon- mirrored its own purpose to rebut its missible since gaps at a number of sistencies illegally obtained statements.3 unwilling points. crucial We are say slight incompatibility its Although court assumes that light White’s, of other viewed testified at defendants would not evidentiary serious more variations illegally prior their obtained trial if jury’s uncertainties, evalua- warrants introduced, not been responsibility tion of Harrison’s criminal gov- no evidence of holds that there was fourth time. “pres- ernmental duress in the form As We affirm Harrison’s conviction. compel de- sure” or “inducement” to White, for a we reverse remand their Constitutional fendants to waive new trial. court al- to remain silent. And the prior-trial so holds that So ordered. U.S.App.D.C. 230, 2. 123 1. Defendants’ first conviction was vacated represented because one of them layman representing trial himself as however,, appellants, 3. As one of the attorney. defendants’ an Reference to other the conviction on court grounds. reversed previous trial is to their second trial. Only peti- appellant rehearing en banc. tions for poisonous not the “fruit of the itself was FEELEY, Appellant, Dianne tree,” “indi- because defendants personalities] human whose at- vidual memory, will, perception, tributes COLUMBIA, Appellee. DISTRICT OF volition interact testimony [they to determine what [ed] No. 20275. give.” Smith would] Appeals United States Court of States, 117 U.S. and Bowden v. United District of Columbia Circuit. App.D.C. 1, 324 F.2d 879 Argued March me, however, plain It seems May Decided testify was com- defendants’ decision to pelled by the need to rebut statements erroneously In admitted evidence. California, 380 U.S.

Griffin v. State of L.Ed.2d 106

(1965), Supreme held that Court ad- prose- comment court or

verse to testi-

cutor a defendant’s failure

fy “cuts down the [Constitutional] making

privilege remain [to silent] present costly.” In the

its assertion exercising privilege

case, cost of greater. erroneously ad-

was even the defendants

mitted left silent remain

with a “Hobson’s Choice”: highly to consider

and allow

damaging statements, testify seek time, nor the

to rebut them. Neither considering counsel, for

benefit of could “damned-

choice alleviate the

if-you-do-damned-if-you-don’t” alterna-

tive.4 testify

Because I think decision to unnecessary compelled, con it is questions

sider the reach of attenuation grant pe

ed the court.5 I would rehearing

tition for en banc.6 WRIGHT, Judge,

J. SKELLY Circuit grant appellant’s petition

would for re-

hearing en banc and with the concurs BAZELON, Judge.

statement of Chief In Edmonds v. United volved witnesses who were not defend- App.D.C. 373, (1959) (en question 273 F.2d 108 ants no thus there was bane), prior-trial compulsion. the introduction tes- of testimonial timony approved. But there Compare People Polk, 63 Cal.2d question given was not Cal.Rptr. (1965), 406 P.2d 641 response illegally to evidence obtained and cert, denied, admitted. (1966) (Traynor, any event, In Smith and Bowden and its J.). C. progeny inapplicable are since in-

Case Details

Case Name: Eddie M. Harrison v. United States of America, Orson G. White v. United States

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

Date Published: Aug 1, 1967

Citation: 387 F.2d 203

Docket Number: 20280, 20281

Court Abbreviation: D.C. Cir.