Wilson M. Smith, Jr. v. United States of America, Raymond Bowden v. United States

Jr., Appellant, SMITH, Wilson M. America,

UNITED STATES Appellee. BOWDEN, Appellant,

Raymond America,

UNITED STATES Appellee. 17466, 17534.

Nos. Appeals Court of Circuit. of Columbia District Argued April Washington, Wood, Mr. Kenneth D. Sept. Decided Court) C., (appointed by D. the District Rehearing En Banc Petition Smith, appellant M. Jr. Wilson 18, 1963. Denied Nov. Washington, Margolius, Mr. Bernard C., Greenspoon, Ben D. with whom Mr.

Washington, (both appointed C.,D. Court) brief, for the District was on the Raymond Bowden. Acheson, Atty., U. Mr. C. S. David Duncan, whom Messrs. Charles T. Q. Principal Atty., U. and Frank Asst. S. Willcox, Asst. Nebeker William H. Attys., brief, were on U. S. pellee. Judge, Before Chief Bazelon, Judges. Circuit Burger,

Bastían Judge. BURGER, Circuit appeals are from murder and These there is convictions urged upon point us the novel that the crime suppressed must because the be appellants, learned illegal detention, existence and eyewitness. of such In short argued that because the confessions “unnecessary delay” made inadmissible, are eyewit- suppressed crime must also ness to the existence because revealed dur- period same time. Appellant in No. guilty felony so-called murder, found Ann. 22-2401 § D.C.Code degree robbery. murder and of guilty in No. was found robbery. killing of testified to Neither related the Merson for at this and comes' time as the events Smith and Bowden were linked testimony was from the to that whose case. When the victim of the sought suppressed. robbery identify to be second either failed appellant, juvenile, Bowden, the was re- Undisputed testimony Philip Hol- from leased, overnight but Smith was detained challenged man, witness, shows that purpose presenting for the of him in a out Smith and Bowden set with line-up morning. the next We will return age evening home. one from Bowden’s legal later questions to the raised By p. Kalo- 7:45 m. the trio had reached detaining Smith in these circumstances. they separated, Park, rama continuing where Smith Preston, on one side the street while Detective the homicide officer primarily responsible investiga- Bowden and Holman remained on tion other. Holman’s at the trial murder, the Merson observed got line-up and Saturday was that a man out of car Smith in the morn- approached and Smith from March him learning behind cir- and using repeatedly head, beat him on the cumstances suspected his arrest a con- a tree limb as a Bowden imme- nection with club. the Merson case. He sent diately join questioned for ing; the street to Smith Smith crossed him that morn- body and, plundering after fingerprints at 10:05 Smith’s victim, palm prints the two ran from the scene of were taken. At 11:20 about crime, following, Dupont polygraph with Holman examination, Smith took a they completed Circle. There p. divided the stolen was at 2:00 m. money. Meanwhile, m., at 10:30 a. Officer Merson, The victim Miksa 65- was Eccles went to and, Bowden's home after year-old pianist agreed and music He accompany teacher. Bowden him, took steps had been struck down a few from him office, to the homicide where he re- Place, home at 2314 Ashmeade N. W. mained for about a half hour without passerby questioning. Within minutes discovered Eccles noticed that Bowden badly wearing Merson matching beaten and covered with was a watch the de- Emergency George- scription blood. at treatment of the watch believed have Hospital unavailing town and he died taken been from Merson. When Bowden shortly hospital. reaching adequately after could not posses- account watch, sion of the Eccles retained it. They had few clues. dis- definitely watch later identified killing covered club used completion Merson’s. poly- as On aof dropped two cards wallet. Merson’s graph given test request, at his own days Five after the crime the Chief of questioned by Bowden was Detective envelope Police un- received from an p. Preston at 2:00 m. containing confessed, Bowden anonymous known source implicated identity Smith and note and eleven credit and representing offered to in a cards aid personal papers did, de- reenactment of the events. This he One cards contained an signed ceased. after which written state- palm print. identifiable also admitting ment his role the crime and gold the dead watch knew that man’s was describing part. Smith’s days missing. slaying Six after the Sunday morning Smith, On who was many persons not know how police did day in his now detention with- killing, nor did involved being presented judicial ato out officer any “leads” have yet who had not admitted involve- killer. crime, questioned. in the ment Friday evening, freely willingly spoke March On Smith morning Sunday and Bowden in Smith connection interview arrested confessed vicinity in the In another the murder. oral confession killing. Their arrest to a Merson was un- referred third excluding after is no A minutes rational scene the crime. few basis for it. No confession, arrived at case has been which the cited us in repeated and the two or the homicide office factual Both referred the witness has been their confessions. excluded because his boy “Bed,” identity told was discovered a third as a called as result of general police he disclosures area where made accused lived, picture detention and told them that a violative Buie Fed.B. Bynum police States, in From these “Bed” was records. Crim.P. v. United 104 U.S.App.D.C. 368, (1958), Hol- leads the were able to locate 262 F.2d 465 applicable. Bynum is man. not Cf. v. United States, U.S.App.D.C. 107 109, 274 F.2d urged appeals (1) On these is that (1960). 767 it was error receive Holman’s testi- mony police found Judge because the this wit- correctly The District read this ness as a result information holding obtained Killough court’s in v. United appellants illegally custody in while U.S.App.D.C. 305, 114 315 F.2d (2) that it was error in (1962), to admit 241 requiring the exclu palm print evidence obtained testimony. sion of Holman’s Neither the day from him on the Killough holding, Mallory holding nor palm print corresponded palm anjr with excluding other case would warrant print registration on the automobile testimony. card Holman’s The fact that of the decedent. source of is evidence “tainted” viola statutory tion of provi constitutional or correctly The District Court ruled that precluded sions has not the use of that oral and written confessions were in- every in evidence circumstance. admissible because were made dur- Walder v. United States, 347 U.S. 74 illegal a detention. The (1954). S.Ct. 98 Compare L.Ed. 503 prosecution Mallory conceded Lockley v. controlling ease was as to the confession 163, 166, (1959) D.C. 270 F.2d Harling1 and the case con- (dissenting opinion); Barkley see also as to trolled Bowden. v. U.S.App.D.C. -, appeals In present essence these 804, p. 323 F.2d n. 1. poisonous familiar “fruit of the tree” no Here confessions or utterances argument but in novel a form not unlike against them; were used Payne presented tangible appel- evidence obtained from U.S.App.D.C. 94, 294 F.2d 723 lants, watch, such as the victim’s denied, cert. suppressed along with the 7 L.Ed.2d 83. The confessions. crucial against But a object witness not an is inanimate Smith was the testi mony narcotics, which like pistol contraband goods, “speak crime. or stolen for themselves.” proffer living witness is not to gone long way Courts have mechanically equated proffer be with the suppressing yet evidence but no case as evidentiary objects illegally inanimate jury has held that a should denied po- seized. fact that the name of a testimony to a crime witness tential is disclosed to is of because of the circumstances in which his evidentiary per se, no significance, since existence learned. living witness is individual human However, view, relationship in our personality will, per- whose attributes of between inadmissible confessions and memory ception, testimony and volition Holman’s interact District Court give.2 months later so attenuated that will there determine what [Harling U.S.App. States] here circum- This is illustrated initially 295 F.2d that when located stance Hoi- process (Emphasis added.) stant case.” uniqueness human of this U.S.App.D.C. 97-98, distinguishes evidentiary character at 726-727 immutabil- from the relative of witness ity Judge Washington of inanimate evidence.3 concluded that suppress of the witness recently in problem dealt We simply had identified Warren because he setting we in which different factual line-up Payne as the robber at a argument very type rejected the “fruit” “un- would be Payne by appellants here. In made thinkable.” Jackson would Mr. Justice Judge Washington, supra, United something appear like this to had have court, speaking said: a unanimous unwillingness expressed in mind when he “by lengthy to debase doctrine constitutional appellant’s “In this case making loopholes things— of them technical mere produced two guilty. peti- escape Payne for the of the of [at identification Warren’s re- fair Payne’s tioners have had fair trial and lineup], of a admission people of are also guilt. admission, view. the State latter, the was process v. to due of law.” Stein by entitled People the trial excluded judge York, Mallory— of of New 346 U.S. State under in the rule 156, 196, 1098, 1077, 97 L.Ed. think, though point S.Ct. rightly, 73 we the * * * 1522 is not before us decision. says “Appellant that but his find no error in the admis We detention he ‘would have blended print palm of taken the sion of day population’, back into the mass purposes compari before of trial for large. remained would have palm print son with the on the victim’s ruling Bynum He cites our in v. in credit Bynum the situation cards. Unlike States, 1958, U.S.App. United 104 States, 104 v. * * * 465, F.2d 368, 262 D.C. 368, (1958), 262 465 D.C. F.2d Bynum’s affirmed But we later con- custody at the time his here was in lawful after a at which viction prints Bynum v. were recorded. Cf. finger- prosecutor introduced a States, U.S.App.D.C. 109, 274 107 print other than that taken curiam). (per F.2d And it 767 detention, of but elementary person that a in lawful was to he able obtain because custody may required to submit to Bynum’s identity knew as a re- he photographing, United v. Amor States fingerprints taken sult (3d Cir., 1948), osa, 596, 599 of period. 1960, U.S.App. 107 that fingerprinting, United States v. 109, Implicit F.2d 274 647, (3d Cir., Krapf, 285 F.2d 650-651 holding rejection our second part 1961), as of routine identification poisonous of ‘fruit of the Kelly, the sort processes. v. 55 argument advanced in the in- (2d 1932). tree’ Cir., 83 A.L.R. 122 67, F.2d (1963), information 407, man no adverse to 9 L.Ed.2d S.Ct. dissenting only pellants; opinion suggests; Wong after reflection and the in- per- Sun, eyewitness testimony faculties of these of human teraction sonality it was not eventually subject Supreme sup Holman did relate Court held to jury night package pression, events rather a of nar but killing. part Moreover, These factors ac- a statement excluded cotics. allowing party rule count for the was uttered one of the Court his own cross-examine witness on a claim at the time unconstitu defendants ultimately surprise impeach entry his and arrest. tional 371 U.S. 416, witness. own S.Ct. at 9 L.Ed.2d 485— prior it is not some utterance 441. Here sought This distinction is not foreclosed or Holman which is Supreme Wong suppressed, recent Court decision in to be eyewitness but Sun 371 U.S. to an event.

88$ 332, 344, Appellant contends 318 U.S. 63 S.Ct. acquittal judgment L.Ed. 819 to a Rule of the Fed- entitled eral close indictment at the Rules of Criminal Procedure re- quires bring government’s Hunt case. as in Here, an arrested committing magistrate U.S.App.D.C. “with- unnecessary (1963), “appellant delay.” Experience out F.2d fragments temptation shows the Government’s case com- to violate this fragment great mand then seeks show that each is so will in isolation voluntarily is consistent comply, legislature considered and the hypothesis Unit of innocence.” See or executive have been unable either 279, 283 Masiello, F.2d ed States unwilling employ effective methods (2nd Cir.) nom., Stick cert. denied sub compliance.1 protect insure To el v. United rights persons, Supreme of arrested 100, But the L.Ed.2d 79 necessary has found to exclude obliged jury to determine whether through evidence obtained violation government’s whole evidence as 5(a). Rule McNabb v. United guilt rob established supra; Mallory bery beyond a reasonable doubt. U.S. L.Ed.2d totality evidence, cir direct and The circumstances revealed cumstantial, to warrant sufficient plainly record in this case demon- guilty.4 verdict rights that these strate will be a dead- judgments District apply courts letter unless continue to are McNabb-Mallory when evidence ob- Affirmed. tained violation of the Rule. only directly Not obtained Judge (dissenting). BAZELON, Chief illegal suspect but also the implications “product” all the evil To “avoid “fruit” or of information so interrogation,” McNabb v.

secret obtained be excluded must from use at discloses that Smith came 4. record heard blows Merson’s head. early evening Shortly Merson, home Smith struck after Hol- “something killing “go said to Bowden and man saw Bowden across the street” Smith, making money,” happened after which [had] about “to what see Smith.” vicinity past Holman went to the Bowden Smith and Bowden then ran him and Hol- Bowden and the crime. he followed. Immediately observed one witness man were after the attack and before walking through park consciousness, im- Merson lost the witness adjacent place mediately at- Branch found Merson and asked him- tack; her, happened, Smith drew near when what had to which Merson re- asked¡ frightened plied “They became screamed hit me.” witness Branch said, whereupon going you?” repeated “They “I am Smith not “Who hit and he you; don’t be afraid.” hurt Accord- hit me.” testimony, testimony division, concerning Holman’s Smith Holman’s money “a little front of” Bowden time Merson’s that after the at- enough gave something and near Holman so that tack Smith twenty over- only heard Smith’s Holman statement but dollars Holman he, commenting you Holman testified that woman. Smith ten dollars “What do ex- * * * through park, pect nothing. you just continued and Bowden if up picked (later a tree branch Smith came across street and searched- Merson) you pockets, gotten, club told Holman the man’s used would have put under [his] coat [because] “to some more.” didn’t want to see [Smith] testimony proposed methods, it.” Holman’s further showed 1. Por a discussion of directly Poote, Bowden were that he and across see Tort Remedies for Police Vio Minn.L, Bights, from where oc- the street attack lations of Individual enough near curred and so that Holman Rev. 493 “product” trial.2 What is a “fruit” or JOHNSON, Appellant, Charles light must be determined in the discourage need Rule. violation al., Elliott Appellees. JOHNSON et present case, police In the detained No. pellant 17260. questioned him inter- Smith and mittently forty elicit- hours Appeals States Court of ing both his substantial confession and District of Columbia Circuit eyewitness. clues to Argued March 1963. Since clues obtained enabled thus July 19, Decided police to locate the witness Holman with Petition Rehearing En Banc difficulty little and thereafter obtain Sept. 24, Denied testimony,4 the link between questioning of Holman was not attenuated.5 To ad- testimony puts premium

mit Holman’s provides

on violation of Rule continuing

incentive for to violate it.6

I would therefore reverse con-

viction and order a new trial. Hol- Since implicated only

man’s co-defendant

Smith but his Bowden as

well, I order would also reverse and

new trial as to Bowden. Anderson v. 350, 599,

United 318 U.S. 63 S.Ct. (1943); L.Ed. see MacDonald v. 191, 451, U.S. (1948). L.Ed. Killough 5. Nor do I think attenuation is shown 305, 241, Holman, the refusal of who testified (later against appellants confession held inadmissible as to do so at one); inquest. the “fruit” of an earlier also see the coroner’s concurring opinion Judge Wright, id. majority except 6. The would the oral tes- 316, 252; 315 F.2d at timony “living witness” from the Bowden, 553, v. Smith and 31 F.R.D. 563- poisoned doctrine, “fruit of the tree” (D.D.C.1962) (Judge Toungdahl’s ground on the that a witness is an “in- Suppress. Memorandum Motions personality” possessing dividual human Wong Sun v. United will, perception, memory “attributes 471, 407, 9 U.S. 83 S.Ct. L.Ed.2d 441 reasoning and volition.” The seems to (1963); Lumber Silverthorne Co. v. op- be that since these human faculties 385, States, 251 U.S. United 182, 40 S.Ct. deciding erate in what evidence the wit- (1920); 64 L.Ed. 319 Nardone v. give, ness will vening the decision is an inter- 308 U.S. 60 S.Ct. voluntary dissipates act which 84 L.Ed. 307 original illegality. taint of the But Wong contradicts Sun v. United obtaining States. 3. Even after the confession and case, In that where an “individual information, human did not take personality” named Tee narcotics before a commissioner until police, Supreme following morning (Monday). excluded His deten- “poisoned the narcotics as fruit” sixty because tion thus totaled hours. illegal- learned of Tee from ly-arrested Smith had Toy. 4. After described 487- juvenile Bowden also did so. But 83 S.Ct. 9 L.Ed.2d 44 descrip- the record shows appears Thus it the deci- give resulted tion was not sion to certain evidence is not independent Record, lead to intervening Holman. voluntary kind of act of an pp. 223-25. personality” “individual human that dis- sipates original illegality. the taint of

Case Details

Case Name: Wilson M. Smith, Jr. v. United States of America, Raymond Bowden v. United States

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

Date Published: Nov 18, 1963

Citation: 324 F.2d 879

Docket Number: 17466, 17534

Court Abbreviation: D.C. Cir.