390 F.2d 476 (D.C. Cir. 1968), 20955, Allen v. United States

Docket Nº:20955.
Citation:390 F.2d 476
Party Name:Vance V. ALLEN, Appellant, v. UNITED STATES of America, Appellee.
Case Date:January 25, 1968
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 476

390 F.2d 476 (D.C. Cir. 1968)

Vance V. ALLEN, Appellant,

v.

UNITED STATES of America, Appellee.

No. 20955.

United States Court of Appeals, District of Columbia Circuit.

January 25, 1968

Argued Oct. 10, 1967.

Page 477

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 sentence 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 testified 1 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

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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 into the shoals of 'custodial interrogation' cannot be determined by reference to some chart clearly designating the various lights, bells, buoys and other channel

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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...

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