Allen v. United States

• Citation: 129 US App. DC 61,390 F.2d 476
• Decision Date: 25 January 1968
• Docket Number: No. 20955.,20955.
• Parties: Vance V. ALLEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

129 US App. DC 61, 390 F.2d 476 (1968)

Vance V. ALLEN, Appellant, v. UNITED STATES of America, Appellee.

No. 20955.

United States Court of Appeals District of Columbia Circuit.

Argued October 10, 1967.

Decided January 25, 1968.

Mr. Richard H. Speidel, Washington, D. C. (appointed by this court), for appellant.

Mr. Albert W. Overby, Jr., Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and John H. Treanor, Asst. U. S. Attys., were on the brief, for appellee.

Before EDGERTON, Senior Circuit Judge, and TAMM and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

Following a jury conviction, appellant was given concurrent sentences of one to three years for unauthorized use of a motor vehicle, and six months for simple assault. Both sentences were suspended, and appellant was placed on probation for three years. We hold the cause must be remanded for the trial judge to consider whether prejudice resulted from the denial to appellant's counsel of access to the grand jury testimony of the arresting police officer, Vincent Tassa, Jr.

The Government's case rested heavily on Tassa's testimony. Apart from witnesses who established that appellant lacked permission of the lawful owner to use the vehicle, the only other government witness was one Earvel Jeffries, a passenger in the car at the time appellant was apprehended and the alleged victim of the assault. However, Jeffries could give little testimony as to the critical period — it developed that he was intoxicated and that he "blacks out" when suffering from that condition — and indeed he testified that he did not remember either ever having seen appellant previously, or having been in a car or talked to police officers.

Officer Tassa testified¹ that shortly after 3:30 a. m. on the morning of December 27, 1965, his attention was drawn to a Chevrolet station wagon being driven at an extremely slow speed with headlights off. Tassa followed the car, which moved slowly into an alley. The officer activated the flashing beacon atop his squad car and beeped his horn, whereupon the car was stopped. He approached the car, intending to issue a traffic citation for night driving without headlights.

Officer Tassa's testimony continued: He came up to the halted vehicle from the driver's side and asked the driver, appellant, to produce his driver's permit and automobile registration. He noticed that there was another man (Jeffries) slumped over in the right rear seat, whose "face was beyond recognition," bleeding profusely about the head. Appellant said he did not have a permit or registration.² Tassa asked appellant who owned the car, where it came from, where he had gotten it. To all of these questions appellant replied that he did not know. The officer asked appellant to step out and walk around to the right side of the car. Appellant did so. Tassa then asked Jeffries (still slumped in the back seat) whether the car was his, but the reply was mumbled and unintelligible.³ He asked Jeffries whether he had been beaten, and if so, by whom. Once again the response was an unintelligible mumble, but this time it was accompanied by a gesture — Jeffries raised his hand and pointed to appellant. The officer knew that Jeffries had been drinking. He turned to appellant and asked whether he had beaten Jeffries. Appellant said he had. The officer directed his flashlight on appellant's hands and saw that appellant's right hand knuckles were skinned enough so that he could see the blood work through the skin. Tassa then called police headquarters and learned from the dispatcher that the automobile had been reported as stolen. Tassa asked appellant if the car was stolen, and appellant replied he did not know. The officer then radioed for help and arrested both appellant and Jeffries.

A wholly different account was set forth in appellant's testimony, which went as follows: Appellant met Jeffries on the evening of December 26, and Jeffries told him that he had been beaten and robbed by "some boys." Jeffries said he was too drunk to drive, offered appellant some money to drive him home and led appellant to the station wagon. Appellant turned on the ignition — without a key, which Jeffries said had been taken — and started off, proceeding first to the home of appellant's sister-in-law, where he dropped off a 15-year old friend (who broadly corroborated appellant's testimony). Appellant further testified: He did not know he was driving a stolen car; he did not assault Jeffries, and had not told officer Tassa that he had; and his knuckles were not bleeding.

Both before the paneling of the jury and during the trial appellant's appointed counsel moved the trial judge inter alia for the production of officer Tassa's grand jury testimony and for suppression of the alleged oral confession allegedly given to Tassa at the scene of the apprehension. Both motions were denied both times. Appellant assails each ruling as reversible error.

I. THE ADMISSION

Appellant contends the court erred in admitting officer Tassa's testimony that appellant admitted beating Jeffries, because Tassa had admittedly not previously given appellant the warnings set forth in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). If the contention is sound, it requires reversal of the judgment. We think it is not sound.

In Miranda the Supreme Court held that unless procedural safeguards of warnings were provided the prosecution could not use statements "stemming from custodial interrogation." See 384 U.S. at 444, 86 S.Ct. at 1612.

By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

In the footnote appended to this sentence the Court said: "This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused."

Whether police have left the channel of "investigation" and run onto the shoals of "custodial interrogation" cannot be determined by reference to some chart clearly designating the various lights, bells, buoys and other channel markers. Nor is it possible or desirable to simplify the matter by saying that whenever any officer is prepared to detain an individual he may not ask any questions. Such a rule would venerate form over the substance of sound relations between police and citizens in a large community. We think the relative routineness of an inquiry is a material indicator that the police are still in a state of investigation. The police talk to too many people in the course of a day to make warnings compulsory every time they inquire into a situation. Such a requirement would hamper and perhaps demean routine police investigation. Indeed excessive admonitions are likely to make cooperative and law-abiding citizens anxious and fearful out of proportion to the need for admonitions in advising prime suspects of their rights.

Miranda specifically permits general on-the-street investigation of citizens not under restraint (384 U.S. at 477-778, 86 S.Ct. at 1629-1630). But obviously citizens are subject to some detention even in that kind of investigation. We think some inquiry can be made as part of an investigation notwithstanding limited and brief restraints by the police in their effort to screen crimes from relatively routine mishaps. It is not uncommon for citizens to forget their permits and registration cards. That this mishap produces incidental detention and restraint while the possibility of a stolen car is checked out, perhaps so brief as to be virtually unappreciated by the person involved,⁴ does not produce the kind of custodial situation contemplated by the Miranda doctrine.

The question as to the assault on Jeffries is more difficult. Appellant's counsel artfully dramatizes the situation by saying that Jeffries had already literally pointed the finger at appellant. In context, however, what we see is an officer taking account of a bleeding man. He asks, who beat you? — and gets only a mumble, for the man is drunk. The officer could not know what the beaten man was trying to indicate, or whether he was in a position to make or report any observation. What did the man mean by his finger — that appellant hit him? That appellant knew who did? The police officer thought it was unusual that a man was lying on the right rear seat. But what did it mean? Was the driver taking the man for a hostile ride? Or to the hospital? An assault is a misdemeanor, and not every fracas is an assault. The courts must look to the essence of the situation and it seems to us clear that the essence here was not an officer staging an interrogation that had focused on a subject but an officer reacting to a street scene and trying to run down the facts. There were two men before him, one reflecting signs of a possible assault, and he asked first one and then the other, what happened? We think that when the officer asked appellant if he had beaten Jeffries, he had not yet made a determination to arrest for assault but was rather engaged in sorting out the facts in a type of street investigation. Miranda did not require the officer to preface with the several warnings therein outlined the questions put to this appellant.

II. ACCESS TO OFFICER'S GRAND JURY TESTIMONY

In the pre-trial motion for the production of officer Tassa's grand jury testimony appellant's counsel said he anticipated that Officer Tassa would be called to testify that defendant made certain incriminating statements. The motion, then denied, was renewed at the close of the government's case. Appellant asserted that there was an inconsistency in the officer's testimony and also that the defendant would take the stand and deny outright the accuracy of the officer's account of the occurrences. Appellant contended that production was required under the guidelines of Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, ...