Whalen v. United States

• Decision Date: 10 November 1977
• Docket Number: No. 8583.,8583.
• Citation: 379 A.2d 1152
• Parties: Thomas W. WHALEN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1152

379 A.2d 1152

Thomas W. WHALEN, Appellant, v. UNITED STATES, Appellee.

No. 8583.

District of Columbia Court of Appeals.

Argued November 11, 1976.

Decided November 10, 1977.

COPYRIGHT MATERIAL OMITTED

W. Gary Kohlman, Public Defender Service, Washington, D. C., for appellant.

Peter E. George, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before KELLY, FICKLING^* and YEAGLEY, Associate Judges.

YEAGLEY, Associate Judge:

At 12:30 p.m. on September 10, 1972, the partially clothed body of 26-year-old Rebecca Rieser was found lying on the floor of her room at the McLean Gardens complex in northwest Washington, D. C. The medical examiner's office determined that Ms. Rieser died sometime between 10:30 a.m. and 12:30 p.m. on that day. They discovered abrasions and signs of trauma about her neck and face, and concluded that death was caused by manual strangulation. In the course of autopsy, swabs of fluid were taken from Ms. Rieser's vagina, which when examined revealed the presence of intact sperm not more than eight hours old.

Appellant was a maintenance worker at McLean Gardens. On the morning of September 10 he had been in the approximate location of the building in which Ms. Rieser lived, for the purpose of removing from a vacant dormitory some furniture which the building manager said he could have. He had admitted to co-workers that morning of having just engaged in intercourse with someone at McLean Gardens. Later his fingerprints and palm print were found in the victim's room. Because of his duties, he had keys to all apartments and rooms at McLean Gardens.

Four days later, police arrested appellant for the rape and murder of Rebecca Rieser. At that time he was in police custody on other charges.

On October 3, 1972, a grand jury indicted appellant and charged him with fifteen counts of felony murder, rape, robbery, burglary and related offenses involving three different victims. On July 23, 1973, the court severed counts relating to the two victims other than Ms. Rieser and ultimately dismissed them on motion of the government. Trial commenced on October 9, 1973, but ended the next day in a defense requested mistrial.

Trial recommenced in Superior Court on January 8, 1974 and culminated on January 16, 1974 in jury verdicts of guilty on two counts of felony murder (the underlying felonies being rape and first-degree burglary), second-degree murder, rape, and first-degree burglary. The court granted motions for judgment of acquittal on counts charging appellant with robbery and felony murder (robbery). On March 4, 1974, appellant received concurrent sentences of 20 years to life on each felony murder count and 15 years to life for second-degree murder. He also received a sentence of 15 years to life for rape, to run consecutively with the murder sentences, and 10 to 30 years for first-degree burglary to run consecutively with the murder and rape sentences.

For the reasons which follow, we are compelled to reverse appellant's convictions for felony murder (first-degree burglary) and first-degree burglary. We vacate appellant's sentence for second-degree murder. We affirm appellant's convictions for felony murder (rape) and rape. We note that the action we take with regard to the offenses for which appellant received concurrent sentences will not likely affect the length of his prison term. Nonetheless, if any is founded in error we are bound to reverse in light of potential collateral consequences stemming from an invalid conviction. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). We will dispose of the many issues raised by this appeal seriatim.¹

I. AMENDMENT OF THE GRAND JURY INDICTMENT (FIRST-DEGREE BURGLARY)

The first of appellant's contentions which we address is that the trial court erred in permitting the government to amend count seven of the indictment subsequent to its case-in-chief to conform the indictment to a ruling of the court on the absence of evidence of theft adduced at trial. Count seven charged appellant with first-degree burglary as follows:

On or about September 10, 1972, within the District of Columbia, Thomas W. Whalen entered the dwelling of Rebecca A. Rieser, while Rebecca A. Rieser was inside the said dwelling, with intent to steal the property of another and to commit an assault. D.C.Code 1973, § 22-1801(a).

After the trial court granted appellant's motion for judgment of acquittal on count two (felony murder (robbery)) and count six (robbery), agreeing that the evidence of theft presented at trial was legally insufficient, the government announced it would amend count seven to delete the words "to steal the property of another and". Defense counsel objected and argued that because no evidence of intent to steal had been adduced, the government had failed to prove count seven and that the court should dismiss the count. Instead, the trial court authorized the government to amend the count as it had proposed.

Appellant argues that in so doing, the trial court intruded impermissibly on his Fifth Amendment right to be charged for serious crimes only by grand jury indictment. We agree and reverse.

The first clause of the Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.

This is applicable directly to the District of Columbia. Barry v. Hall, 68 App.D.C. 350, 98 F.2d 222 (1938).

The indictment requirement interposes ordinary citizens as a safeguard between a prospective defendant and oppressive actions of a prosecutor or a court. Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962); Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 41 L.Ed.2d 252 (1960); Gaither v. United States, 134 U.S.App.D.C. 154, 413 F.2d 1061 (1969). It aims to apprise the accused of charges against him so that he may prepare his defense, and to describe the crime charged with specificity sufficient to enable the accused to protect against future jeopardy for the same offense. Gaither v. United States, supra.

These purposes are violated where an indictment is amended in substance in a manner other than by resubmission to the grand jury. Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). An amendment of substance occurs when the charging terms are altered by prosecutor or court after the grand jury has last passed upon them. Gaither v. United States, supra. We conclude that such an alteration took place in the instant case.

Indeed, the instant case is strikingly similar to Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). In Bain, defendant, a banking officer, was charged with making a false report "with intent to deceive the Comptroller of the Currency and the agent appointed to examine the affairs of said association." Id. at 4, 7 S.Ct. at 783. The government thereafter moved for and the trial court ordered an amendment to strike the italicized words. The Supreme Court reversed petitioner's conviction, rejecting the trial judge's assertion that the grand jury would have indicted without the omitted language:

But it is not for the court to say whether they would or not. The party can only be tried upon the indictment as found by such grand jury, and especially upon all its language found in the charging part of that instrument. . . . How can the court say that there may not have been more than one of the jurors who found this indictment who was satisfied that the false report was made to deceive the comptroller, but was not convinced that it was made to deceive anybody else? And how can it be said that, with these words stricken out, it is the indictment which was found by the grand jury? If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the constitution says "no person shall be held to answer," may be frittered away until its value is almost destroyed. [Id. at 9-10, 7 S.Ct. at 786 (emphasis added).]

See also Russell v. United States, supra; Stirone v. United States, supra.

In the instant case, it would at best be speculative to say that the grand jury would have returned a true bill on count seven if the indictment had been presented to it as it appeared after the amendment. Although it might be logical to assume that any grand juror who would find intent to steal and to commit assault would also find either element individually, we cannot say that some grand jurors may not have relied primarily on the belief that appellant entered the victim's apartment with intent to steal. They may have been ambivalent on the question whether appellant also entered with intent to commit assault, and conceivably would have voted against the issuance of a true bill containing only the latter charge.

We are not presented with a situation in which an indictment charges several offenses, or the commission of one offense in several ways. Under such circumstances, withdrawal from the jury's consideration of one offense or one alleged method of committing it would not constitute a forbidden amendment of the indictment. Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927); Salinger v. United States, 272 U.S. 542, 47 S.Ct. 173, 71 L.Ed. 398 (1926). The instant case, like Bain, presents an unseverable, unitary charge, stated in the conjunctive. Prior to amendment, the government had failed to prove the offense charged. As amended it was not the charge on which the grand jury indicted.

We read Bain to be concerned not only with whether the amendment technically...