Lead Opinion
After a jury trial in Lenawee Circuit Court, defendant was found guilty but mentally ill of first-degree murder, MCL 750.316; MSA 28.548, for the killing of a college honors coed. Defendant was sentenced to imprisonment for his natural life without parole. He appeals from his conviction by leave granted to file a delayed appeal.
The prosecution’s case against defendant was based upon circumstantial evidence presented through the testimony of more than forty witnesses, not including expert testimony from a rebuttal witness. Defendant testified and raised two defenses: a reasonable doubt existed that defendant was the perpetrator of the homicide; and, in the alternative, legal insanity. On appeal defendant raises eight issues. We affirm.
The victim’s body was discovered in a field off of a country road outside of Tecumseh, Michigan, on Tuesday, January 31, 1984, at 7:30 a.m. She was last seen alive in Tecumseh at approximately 5:30 p.m., Monday, January 30, 1984. Just two weeks before her death, the victim assumed employment as an Avon lady and was assigned a route which covered the Russell Square Apartments in Tecumseh where defendant lived.
A description of the victim’s actions on January 30 is warranted to more fully appreciate defendant’s arguments on appeal and the factual setting of this case.
Ruth McCarley, a Tecumseh resident, testified that her daughters had ordered Avon products from the victim and that the victim had stopped at her house between 12:30 p.m. and 1:30 p.m. to make a delivery but then agreed to return about 5:00 p.m. when Ruth’s daughters would be home. Ruth testified that the victim never returned. Several residents of Russell Square Apartments
i
Defendant argues that the prosecution presented insufficient evidence on the element of premeditation. According to defendant, the evidence was sufficient to sustain a second-degree murder conviction but was lacking in several key areas to establish a cold-blooded, deliberate and planned killing rather than one committed in the heat of passion or frenzy. These areas include: a prehomicide motive, defendant’s actions preceding the offense to show a plan for the homicide, and a prior relationship between the victim and defendant other than that established by the sale of Avon products to defendant by the victim. He contends that the brutality of the method of killing alone is not evidence of a deliberate plan. Finally, he argues that the evidence of sexual relations tending to show that the homicide was committed in the
When reviewing a claim of insufficient evidence, we review the record to determine whether sufficient evidence was introduced to justify a trier of fact in reasonably concluding that the defendant is guilty beyond a reasonable doubt. People v Hampton,
Premeditation and deliberation need not be established by direct evidence, but may be inferred from all the facts and circumstances established on the record. People v Hoffmeister,
The brutal nature of a killing does not alone justify an inference of premeditation and deliberation. People v Hoffmeister, supra, p 159. It has been held that evidence of manual strangulation and a defendant’s posthomicide conduct support a prima facie case of first-degree premeditated murder. People v Irby,
After reviewing the entire record, we conclude that sufficient evidence was presented from which the jury could infer premeditation. Evidence was presented from which the jury could infer motive and a deliberate plan by defendant’s prehomicide actions. Compare, People v Gilbert,
Evidence of motive, a sexual interest in the victim, was presented through the testimony of Todd Davis Sparks. On August 15, 1984, Sparks, an escapee from Jackson Prison, was lodged in the Lenawee County Jail in a cell adjacent to that of defendant. According to Sparks, he and defendant conversed after defendant learned that Sparks had escaped from prison. Defendant wanted to know what prison conditions were like. Defendant explained that he was incarcerated for killing the Avon lady. Defendant described her as so "good-looking, that he wanted some.” Defendant told Sparks that he had made a pass at the Avon lady when she delivered a gift which defendant had purchased for his ex-wife on their divorce. Defen
As an explanation for why he was caught, defendant told Sparks that he was on the client list. He further told Sparks that police had found one of her earrings and stated: "I fucked up. She lost an earring.” Sparks testified that he had no plea agreement for the escape charge when he reported this conversation to police. He further testified that he knew nothing about the case until his conversation with defendant.
Evidence of defendant’s prehomicide actions was presented which could support an inference of premeditation or an opportunity to give his actions a second look.
Katherine Richter, formerly defendant’s second wife, testified that she visited defendant in his apartment twice on January 30, the date their divorce became final. She first visited him in the afternoon, arriving at 3:23 p.m. and leaving by 3:55 p.m. She delivered the final divorce papers and had defendant sign off of their joint bank account. According to her testimony, defendant told her that he had a gift to give her as a memento of the marriage but that he had not yet received it. She further testified that they had sexual relations at his request. She testified that defendant threw the gift, an Avon necklace, at her when she visited him the second time, shortly after midnight.
Janet Ann Poley, an acquaintance from the Seventh Day Adventist Church, testified that defendant’s apartment was dark between 6:15 p.m. and 6:20 p.m. when she stopped to pick him up for
Joey Lee Underwood, a neighbor living directly below defendant’s apartment, testified that he had considered visiting defendant after dinner on January 30. He decided not to go when he heard a woman’s voice coming from the apartment at approximately 7:00 p.m. or 7:30 p.m. He was unable to distinguish any words but testified that the woman’s voice was spoken in a conversational tone. Underwood testified that he did not hear screams or yelling and heard no voices after 11:00 P.M.
Evidence of the circumstances of the killing provided additional evidence to support an inference of a deliberate killing. A bronze wire ligature, resembling a coat hanger, was found twisted around the victim’s neck. The victim’s hands were bound behind her back and she was blindfolded. Although the victim was clothed, her sweater had been cut open and her underclothes were in disarray.
Dr. Laurence Simson performed an autopsy on the victim and testified that the cause of death was strangulation. There were no other major injuries to the body. Dr. Simson noted that the
From the evidence of defendant’s prehomicide actions and the victim’s whereabouts, the jury could infer that the victim arrived at defendant’s apartment after 5:30 p.m. to deliver the necklace, that defendant intentionally darkened the apartment and refused to respond to Poley’s knocks, and that defendant continued to hold the victim against her will as late as 7:00 p.m. or 7:30 p.m. This evidence, together with the other evidence of the killing, provides enough evidence from which the jury could infer premeditation.
II
Defendant contends that the trial court erred by admitting, over defense objections, several statements attributed to the victim. Defendant claims that reversal is required under People v White,
Richard Barker, the victim’s flancé, testified that the victim had talked to him about one male customer. Defense counsel objected on grounds of hearsay and the Dead Man’s Statute. The prosecution argued that MRE 803 allowed the admission of evidence of "state of mind of the decedent or of a declarant.” The trial court allowed the prosecutor to continue this line of questioning. Defense counsel raised no other objection thereafter, but asserts on appeal that it was assumed further objection would fail.
We note that defendant does not challenge the testimony of Barker elicited by defense counsel on cross-examination which delved further into the conversation between the victim and Barker. According to Barker, the conversation occurred during the first week that the victim had her Avon route. The victim identified the male customer by name in their conversation, but Barker was unable to remember it at trial. According to Barker, the victim stated that she got a strange, uneasy feeling about being there. In another conversation on Saturday, January 28, the victim told Barker that she was concerned about delivering the order to this customer on Monday, because all the things he had ordered had not arrived.
Defendant challenges the testimony of the victim’s mother and the girlfriend of the victim’s brother concerning similar conversations in which the victim had expressed nervousness about a male customer at the Russell Square Apartments. According to the girlfriend, the victim related an incident that occurred on a second visit to the customer at the Russell Square Apartments. The victim was knocking on the door across the hall when the customer opened his door and invited her in. When she asked the customer and his two male friends if they wished to order any Avon products, they laughed and asked: "Do you deliver?” The victim said she was frightened and did
Defendant also challenges the testimony of Kimberly Ann Will, a resident of Russell Square Apartments. Her testimony related a conversation she had with the victim between 1:30 p.m. and 2:00 p.m. on January 30, when the victim delivered an Avon order. The conversation concerned a divorced man who lived in the apartment buildings. The man was not identified by name. The victim stated that he was weird and that she dreaded going back to his apartment because he had kept her there for over an hour on each of her previous two visits. According to Will, the victim stated that the man would just go on talking even though she announced her intentions to leave, and that he would flip through the book and continue talking.
Assuming that defendant raised a sufficiently specific and timely objection to this evidence, we believe that this case is distinguishable from People v White, supra, on several grounds. In that case, error mandating reversal was found on three grounds, including the erroneous admission of rebuttal evidence. The rebuttal evidence constituted statements made by the decedent two weeks before his death. According to the rebuttal witness, the decedent stated that he and the defendant had had an argument and that he was frightened of the defendant. The trial court had earlier sustained an objection to this evidence, precluding its use in the prosecution’s case in chief. No limiting instruction was given or requested. The defendant was charged and convicted by jury of first-degree murder.
In White, supra, pp 502-507, admission of the conversation was deemed prejudicial error because the decedent’s state of mind was not an important
In contrast, in this case defendant’s name was never given in any of the conversations except the first one between the victim and Barker. More importantly, defendant’s name was not identified in the testimony at trial. Further, no specific argument, conflict or assaultive behavior by defendant was shown through this testimony. The likelihood of unfair prejudice to this defendant is not as great as that which accrued to the defendant in White, supra, where the defendant was expressly identified by name. Although the evidence of the victim’s conversations may not have helped defendant, it did not specifically single him out as the unidentified male customer. In short, the prejudice to defendant does not rise to the level of error mandating reversal as it did in White.
Interestingly enough, defendant has chosen not to challenge the evidence elicited from Barker on cross-examination of the victim’s intent to deliver an incomplete order to the male customer on January 30.
A common use of a victim’s declarations of state of mind or emotion is to prove state of mind when state of mind is an issue in the case. See White, supra, pp 502-504. The hearsay exception provided by MRE 803(3) allows the admission of such declarations when state of mind itself is an issue. People v Lucas,
Although the victim’s state of mind was not directly at issue (as in a case where self-defense is asserted), her declarations, specifically, her intent to deliver an incomplete order to a male customer, could be admitted under MRE 803(3) to show
The leading case on this point is Mutual Life Ins Co of New York v Hillmon,
In the case sub judice, evidence of the victim’s intent was probative to show her conduct on January 30 because defendant asserted a defense that the proofs did not establish beyond a resonable doubt that he was the perpetrator. Even if defendant had raised a timely and specific objection, the trial court could have allowed the evidence to show the victim’s conduct on January 30.
Having determined that reversal is not mandated by White, supra, we consider whether admission of the challenged evidence was otherwise erroneous. The testimony challenged on appeal may be categorized this way: (1) evidence of the
The victim’s declarations of the number, frequency, length and nature of her past visits to the male customer were not admissible under MRE 803(3). These statements did not express her state of mind at the time the conversations were held, but instead constituted statements of memory based upon past events. Compare People v DeRushia,
Likewise, the victim’s statements of emotion (i.e., fear, dread, nervousness) were not admissible under MRE 803(3). They either constituted a statement of memory (i.e., how the victim felt on past occasions) or they constituted statements of her then-existing state of mind, which was not at issue. Thus, assuming that defendant raised an adequate objection and preserved the issue for review, we find that the trial court erred by allowing the testimony.
Our next inquiry is whether the error was harmless or mandated reversal. People v Stubl,
An error may be intolerably offensive to the maintenance of a sound judicial system if it was deliberately injected into the proceedings by the prosecution, if it deprived the defendant of a fundamental element of the adversary process or if it is of a particularly inflammatory or persuasive kind. People v Gallon,
Defendant does not claim that the error was deliberately injected by the prosecution or that it amounts to prosecutorial misconduct. Defendant was not deprived of a fundamental element of the adversary process concerning the evidence of the victim’s previous visits, because this evidence was shown by competent testimony. Stubl, supra, p 46. See, also, People v Kregger,
Defendant denied that the victim had ever acted afraid of him. Thus the evidence of the victim’s feelings toward an unnamed male customer was not shown by other competent evidence. However, under the circumstances presented in this case, we conclude that admission of this hearsay evidence was not such an affront to the integrity of the trial process that reversal is warranted. People v Swan,
Our next consideration is whether the error in admitting the hearsay evidence was harmless beyond a reasonable doubt. As the Court stated in People v Swan, supra, p 33:
The purpose of this requirement is to safeguard*319 the defendant’s right to be convicted only by a jury and only upon their finding of his guilt beyond a reasonable doubt. In applying this standard, therefore, we may not substitute our independent judgment of the defendant’s guilt or innocence for the judgment of the jury. Instead, we must assess only "what effect the error had or reasonably may be taken to have had upon the jury’s decision.” We must determine "whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction,” that is, whether it might have aided in convincing an otherwise undecided juror of the defendant’s guilt beyond a reasonable doubt. If it is reasonably possible that, in a trial free of the error complained of, even one such jury member might have voted to acquit the defendant, then the error was not harmless, and the defendant must be retried. If, on the other hand, "the proof was so overwhelming, aside from the taint of the error, that all reasonable jurors would find guilt beyond a reasonable doubt,” then the conviction must stand.
Although this inquiry presents a closer issue, after reviewing the evidence presented to the jury, we find no reasonable possibility that the hearsay evidence contributed to defendant’s conviction. Compare, People v Soles,
Defendant argues that the trial court abused its discretion when it denied his pretrial motion to bifurcate the trial on the issues of guilt and legal sanity. According to defendant, the demands of due process and a fair trial should have resulted in a favorable ruling since both of the defense theories, namely, a reasonable doubt and legal insanity, were substantial. He argues that the prejudicial impact of requiring defendant to proceed on both defense theories before one jury requires reversal.
The decision to grant or to deny a bifurcated trial rests within the sound discretion of the trial court. People v Donaldson,
The trial court denied the motion for the reason that defendant would not suffer undue prejudice by presenting the defense of insanity before the same jury which would determine his guilt or innocence. The trial court made its ruling without regard to whether or not it actually had authority to grant the motion. We find no abuse of discretion.
The argument alleging prejudice was aptly re
The trial court did not abuse its discretion by its ruling, and defendant was not deprived of his right to a fair trial.
IV
Defendant argues that error mandating reversal occurred when the trial court denied his pretrial motions for a change of venue and for individualized voir dire or, in the alternative, voir dire conducted on the basis of a list of ninety questions proposed by defendant. Pretrial publicity of this case consisted of newspaper articles and radio news reports which described the murder investigation and the pretrial proceedings. According to defendant, the pretrial publicity was so extensive that it was impossible for him to receive a fair and impartial trial in Lenawee County and, further, that the extensive publicity required the trial court to probe the extent of each juror’s knowledge of the case.
The existence of pretrial publicity alone does not necessitate a change of venue. People v Prast (On Rehearing),
MCR 2.511(C), formerly GCR 1963, 511.3, provides that the trial court may conduct the voir dire examination of prospective jurors. The purpose of voir dire is to give counsel the opportunity to develop a rational basis for exercising both challenges for cause and peremptory challenges. People v Vesnaugh,
We reject both of defendant’s arguments in light of the record presented in this case. Although there had been pretrial publicity surrounding this case, the jurors who felt they could not render an impartial decision were excluded for cause. Seven of the twelve jurors who decided this case indicated that they had prior knowledge of the case, yet each one stated that he or she could set aside his or her prior knowledge and impartially decide the case upon the evidence presented. No pattern of strong community feeling or bitter prejudice against defendant was shown.
The trial court did not abuse its discretion by its denial of the change of venue motion. People v Jancar,
v
Defendant argues that he was denied his constitutional right to due process of law when the jury found him guilty but mentally ill of first-degree
Defendant acknowledges that the Michigan Supreme Court has held that the special verdict of guilty but mentally ill, MCL 768.36; MSA 28.1059, is constitutional and does not deny due process of law under US Const, Am XIV; Const 1963, art 1, § 17. People v Ramsey,
MCL 768.36(1); MSA 28.1059(1) allows a trier of fact to return a guilty but mentally ill verdict under the following circumstances:
If the defendant asserts a defense of insanity in compliance with section 20a [MCL 768.20a; MSA 28.1059(1)], the defendant may be found "guilty but mentally ill” if, after trial, the trier of fact finds all of the following beyond a reasonable doubt:
(a) That the defendant is guilty of an offense.
(b) That the defendant was mentally ill at the time of the commission of that offense.
(c) That the defendant was not legally insane at the time of the commission of that offense.
Legal insanity is defined by MCL 768.21a; MSA 28.1044(1):
A person is legally insane if, as a result of mental illness as defined in section 400a of Act No. 258 of the Public Acts of 1974, being section 330.1400a of the Michigan Compiled Laws, or as a result of mental retardation as defined in section 500(g) of Act No. 258 of the Public Acts of 1974, being section 330.1500 of the Michigan Compiled Laws, that person lacks substantial capacity either*324 to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.
Mental illness is defined in MCL 330.1400a; MSA 14.800(400a):
As used in this chapter, "mental illness” means a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.
Defendant offered the expert testimony of a forensic psychiatrist in support of his legal insanity defense. The expert diagnosed defendant as a chronically mentally ill person, suffering from one or more psychiatric conditions. They are paranoid schizophrenia, organic brain impairment which manifests itself in psychomotor seizures, and post-traumatic stress disorder. The expert testified that, if defendant committed the homicide, he did it as the result of mental illness and was legally insane (i.e., without an ability to conform his behavior to the requirements of law). The expert testified that several factors aggravated his mental illness, including the impending divorce and his anger because the victim did not deliver all that he had ordered. The expert opined that the evidence surrounding the killing was so contrary to defendant’s background, history and personality that, if defendant did commit the homicide, he must have been in a dissociative state.
In rebuttal, the prosecution offered the testimony of an expert witness who was qualified as a forensic examiner and board eligible in forensic psychiatry. The expert distinguished mental illness (a legal term defined by statute and not a psychiatric term) from mental disorder (a term used by the American Psychiatric Association di
The prosecution expert opined that defendant suffered a posttraumatic stress disorder and a mixed personality disorder. In his view, defendant was not mentally ill on January 30, 1984, because no objective evidence was presented to indicate mental illness. He attributed the lack of objective evidence to defendant’s lack of memory of the events on that day. He opined that defendant was not mentally ill during the two interviews, and that previous discharge summaries indicated that defendant was not mentally ill. He concluded that defendant was not legally insane because he was not mentally ill on January 30, 1984. On cross-examination, the expert acknowledged that there are times when a borderline personality disorder is extremely disorganized such that it impairs one’s ability to cope with the ordinary demands of life.
In light of the record evidence presented, the jury could have concluded that defendant was mentally ill but not legally insane on January 30, 1984. The jury could accept the testimony of defendant’s expert that the posttraumatic stress syndrome impaired defendant’s ability to cope with the ordinary demands of life. The jury could also have accepted the testimony of the prosecution expert witness that defendant did not lack a capacity to appreciate the wrongfulness of his conduct.
In any event, the record shows that the trial court polled the jury when the verdict was delivered and there was no indication of a compromise verdict. MCR 2.512(B)(2), formerly GCR 1963, 512.2. We find no violation of defendant’s right to due process of law.
vi
During trial defendant moved to admit a videotaped interview of defendant by the defense psychiatric expert. Defendant argued that the videotape provided the best evidence of the foundation on which the expert based his opinion. The trial court denied the motion, ruling that the tape would be highly prejudicial since it would allow the defendant to testify without being under oath and subject to cross-examination, notwithstanding defense counsel’s promise that defendant would testify and would be subject to cross-examination. The trial court recognized that the jury could be instructed to disregard defendant’s statements for their truth and to use them only as the basis of the expert’s opinion; however, the trial court concluded that such a cautionary instruction would be ineffective.
The admission of evidence rests within the sound discretion of the trial court, and the decision to admit or to exclude evidence will not be overturned absent a clear abuse of discretion. People v Strickland,
VII
Defendant raises several evidentiary challenges to the admission of expert testimony with respect to blood typing and fiber analyses performed during the investigation of this case. On appeal two challenges are made to the admission of testimony concerning blood typing, and one challenge is addressed to the fiber analyses.
During trial defendant moved to exclude any expert testimony related to the fact that defendant’s blood type was the same as the blood type determined from an analysis of semen found in the victim’s body. Defendant argued that the results of the test placed defendant in a group that was too large in size to be probative of the question of whether he had been the source of the semen. Defendant further argued that the testimony would be more prejudicial than probative. After hearing argument on the motion, the trial court denied the motion, finding that the evidence would be relevant and that the class was small enough to allow the jury the opportunity to consider the evidence.
Carolyn Bazzett, a State Police Crime Lab serologist, described the blood type of defendant, the victim and her fiancé. She testified that the victim’s fiancé was a nonsecretor which meant that she would not be able to detect his blood type from any of his body fluids. She testified that the victim was a Group o secretor and that defendant was a
On appeal defendant reiterates his argument that the expert testimony on blood typing could only place defendant within a large class of individuals who could have been the source of semen and thus error mandating reversal arose when his motion was denied. We are not persuaded that the trial court abused its discretion by admitting this evidence. The size of the class with which a defendant shares a common characteristic goes to the weight that the trier of fact may give the evidence, and does not go to its admissibility. People v Goree,
Defendant’s second challenge to the results of the electrophoresis testing is one which was not raised below in defendant’s motion or by way of objection. Defendant argues that the foundation for this evidence did not clearly establish that electrophoresis testing has met the standards of general scientific acceptance.
According to defendant, resolution of this issue depends upon the ultimate decision of our Supreme Court in People v Young,
In People v Young (After Remand),
Error may not be predicated upon a ruling which admits evidence unless a substantial right of the party is affected and a timely objection,
Finally, defendant challenges the trial court’s decision to admit expert testimony concerning fibers found on and near the victim’s body which could have come from defendant’s coat. According to defendant, the evidence was more prejudicial than probative since the expert witness could not conclusively state that the fibers were from defendant’s coat and could not estimate how many other coats or materials could have been the source of the fibers. Although we find no case directly on point to guide us, we conclude that the trial court did not abuse its discretion by admitting the evidence. The expert’s inability to conclusively associate the fibers with defendant’s coat goes to the weight, and not the admissibility, of this evidence.
VIII
Defendant challenges the trial court’s decision to admit a broken coat hanger found by police in their second search of defendant’s apartment. According to defendant, the trial court erred because no foundation was made to tie the coat hanger to the offense. The bronze-colored wire coat hanger with the hook broken off was admitted into evidence as plaintiff’s Exhibit 81.
At the beginning of trial, two witnesses described the ligature found on the victim as a coat hanger. The ligature, plaintiff’s Exhibit 33, was identified and presented to the jury through the
The rule governing the admission of physical evidence requires that a proper foundation be laid and that the articles be identified as that which they purport to be and that the articles are shown to be connected with the crime or with the accused. People v Hence,
Affirmed.
Notes
People v Davis,
Dissenting Opinion
(dissenting). I agree with the opinion of the majority in its entirety with the exception of one issue which, in my view, requires a remand to the trial court for an evidentiary hearing.
During trial, defendant moved to admit a videotape interview of defendant with the defense psychiatric expert. The expert’s opinion was substantially based upon this psychiatric interview. Defendant argued that the videotape provided the best evidence of the foundation upon which the expert based his opinion. The trial court ruled that the videotape was inadmissible. The court stated that the videotape would be highly prejudicial since admission would permit defendant to testify with
The admissibility of evidence is a matter which rests within the sound discretion of the trial court, and this Court will not overturn the trial court’s decision to admit or exclude evidence absent a clear abuse of discretion. People v Strickland,
In People v McDaniel,
Other jurisdictions have faced this issue with differing results. In Eaton v State,
While the absence of the tape from the record precludes us from specifically passing on its admissibility, we do not see how the trial judge could have properly exercised his discretion in deciding the evidence would not be necessary or helpful without viewing the tape.10
This states the better view.
At the present state of these proceedings, the remedy is not a new trial. Without more information, it is impossible to determine if the trial court’s exclusion of the videotape was in error. It is entirely possible that the videotape should have been excluded. At this stage, it is only clear that the manner in which the trial court made its determination was wrong.
Accordingly, this case ought to be remanded for a hearing. The trial court and counsel should view the videotape, together or separately, and counsel should prepare arguments on whether the videotape should have been admitted. The trial court should make findings and balance the advantages and disadvantages of admitting the videotape on the record. The transcript of this hearing would then be filed with this Court and the parties would file supplemental briefs. Jurisdiction should be retained. We would then know whether failure to admit the tape was error and, if so, whether it was
Other courts have found no abuse of discretion in cases where the trial court failed to listen to the objected-to tape before playing it to the jury, similar to the situation in People v McDaniel,
We do not mean to say that the trial judge must review all such evidence before ruling on its admissibility. However, where a proper foundation has been laid and the evidence would otherwise be relevant, a viewing of the tape would be necessary to a proper exercise of discretion unless the evidence is being-rejected on the grounds that it is cumulative or it is apparent that the tape is objectionable for some other reason.
As a general proposition the court in United States v Lemonakis, 158 US App DC 162; 485 F2d 941 (1973), cert den