399 F.2d 559 (D.C. Cir. 1968), 20506, Parman v. United States

Docket Nº:20506.
Citation:399 F.2d 559
Party Name:Walter Lee PARMAN, Appellant, v. UNITED STATES of America, Appellee.
Case Date:May 20, 1968
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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399 F.2d 559 (D.C. Cir. 1968)

Walter Lee PARMAN, Appellant,


UNITED STATES of America, Appellee.

No. 20506.

United States Court of Appeals, District of Columbia Circuit.

May 20, 1968

Argued June 23, 1967.

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Mr. Daniel A. Rezneck, Washington, D.C., with whom Mr. Abe Krash, Washington, D.C., (both appointed by this court) was on the brief, for appellant.

Mr. James A. Strazzella, Asst. U.S. Atty., with whom Messrs. David G. Bress, U.S. Atty., Frank Q. Nebeker and Alfred L. Hantmen, Asst. U.S. Attys., were on the brief, for appellee.

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

BURGER, Circuit Judge:

This is an appeal from a judgment of conviction on two counts of a four count

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indictment. 1 Appellant was found guilty of first degree murder, for which the jury recommended the penalty of life imprisonment, and assault with a dangerous weapon. The details of this bizarre and shocking crime, brought forth in a long and extensive trial, need not be repeated here. The government's case, based almost entirely upon circumstantial evidence of the highest scientific value, demonstrated that Appellant had committed the homicide in question, fled to the West Coast leaving a trail of evidence in his wake, and was apprehended. The scientific evidence amassed against Appellant was very strong, if not the strongest possible, outside of eyewitness testimony, needed to prove beyond a reasonable doubt that Appellant committed the crime. Appellant offered little defense on the merits, and principally relied on the insanity claim. On appeal, Appellant raises several issues.

(1) Appellant's first claim is that the Trial Judge erred in refusing to grant a separate trial of the issues whether Appellant committed the acts charged and, assuming he did, whether he was criminally responsible for such acts. This 'bifurcation' issue has recently been recognized by this court:

substantial prejudice may result from the simultaneous trial on the pleas of insanity and 'not guilty.' The former requires testimony that the crime charged was the product of the accused's mental illness. Ordinarily, this testimony will tend to make the jury believe that he did the act. Also, evidence of past anti-social behavior and present anti-social propensities, which tend to support a defense of insanity, is highly prejudicial with respect to other defenses.

Holmes v. United States, 124 U.S.App.D.C. 152, 153, 363 F.2d 281, 282 (1966). We contemplated in Holmes that motions for bifurcation are addressed to the 'broad discretion' of the trial judge, id. at 154, 363 F.2d at 283; thus our review is limited to an inquiry whether that discretion was abused. Because the trial judge is, at the outset, likely to be unaware of the relevant facts relating to the merits defense or the claim of insanity, it is defense counsel's responsibility to raise the issue of bifuraction. Harried v. United States, 128 U.S.App.D.C. 330, 336, 389 F.2d 281, 284 (1967). In bringing the matter to the attention of the trial judge, counsel should indicate why he believes that a bifurcated trial is in the interest of justice, to prevent prejudice to the defendant on either the merits or the insanity claim.

On the day of trial, counsel moved for a bifurcated trial, relying upon Holmes. He stated that there was a substantial basis for a claim of insanity which would prejudice his other defenses and indicated that he would challenge the government's burden of proof. He specifically conditioned his request, however, on the impanelling of two juries, 2 a procedure mentioned in

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Holmes. 3 Although bifurcation procedures are not specified in any statute or rule, as Holmes sets forth they are available within the discretion of the trial judge. Subsequently, at the close of the government's case, counsel renewed his motion for bifurcation in a pro forma fashion:

In addition, I would at this time renew my motion for bifurcated trial based on the fact that entire evidence of the Government was circumstantial and that although I have previously mentioned to this jury on remarks voir dire, I was going to interpose defense of insanity had I been granted a bifurcated trial, I feel some reasonable arguments could have been made.

Tr. 965. 4

Appellant argues that intermingling the defense on the merits and the insanity claim necessarily worked to his prejudice. For example, he urges that there was prejudice to his insanity defense in the Trial Court's ruling inadmissible because of its inflammatory nature a photograph introduced to support the insanity claim. He also claims prejudice to his merits defense in that a recording of a sodium pentothal interview introduced as part of the insanity claim was, in fact, a confession and that, however well instructed, the jury could only have taken it as such.

However, these kinds of prejudice might have been substantially diminished by a bifurcated trial before a single jury. Defense counsel did not indicate, and the Trial Judge did not inquire, why the bifurcated trial should require two juries. Presumably counsel concluded he had sound tactical reasons; perhaps that an objective consideration of the insanity issue would be difficult of achievement by a jury which heard counsel take positions which the jury might regard as inconsistent. Defense counsel may have concluded that if there must be a single jury the possible benefits of bifurcation would be outweighed by a full presentation on mental condition before the jury withdrew to consider whether Appellant premeditated the killing, or even had malice or intent to kill. The fact that defense counsel may have had meaningful reason for his position does not mean that he was entitled to two juries as a matter of right. 5

Here the request for two juries was made in a case of first degree murder as to which the jury has a sentencing function. 22 D.C.CODE § 2404 (1967) provides that a unanimous jury can recommend life imprisonment in lieu of the otherwise mandatory death sentence. We may fairly assume that Congress did not consider the possibility of a defendant who sought two juries as an element of fairness, and that it presumed, without reflection on that problem, that the jury determining punishment would be the same jury as the one which heard the evidence, both the evidence of guilt and the evidence tendered as to defenses and mental disease. We need not determine whether these considerations would be overborne in a case where a bifurcated trial before one jury entailed serious and substantial

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prejudice that could not be tolerated, perhaps even rising to denial of fair trial. In the present case at least, the disadvantages of a trial without bifurcation might have been substantially diminished by a bifurcated trial before one jury. Accordingly, the condition of two juries, which may well have been a sound tactical approach by defense counsel, cannot be elevated to the level of a legal right that could not be denied consistently with sound discretion.

(2) Appellant's second claim relates to alleged error in the admission of various items of evidence; namely, (a) evidence seized during a claimed unlawful search and seizure of Appellant's apartment, (b) a statement of Appellant taken in Los Angeles allegedly during a period of 'unnecessary delay' in violation of FED.R.CRIM.P. 40(b), and (c) the admission of a bedspread into evidence without adequate evidentiary foundation.

The homicide occurred in the early morning hours of Saturday, January 9, 1965. During the course of the investigation conducted later that day the police learned from a friend of the deceased that the deceased, this friend, and Appellant had been out drinking and dancing the previous evening; that Appellant and the deceased had left the restaurant in the early morning hours of January 9, 1965; and that Appellant stated that he would take the deceased to the friend's house later, but never arrived. The circumstances that a felony had been committed and that Appellant was the last known companion of the victim, gave police probable cause to believe that Appellant had committed the crime. The investigation inescapably led them at once to his apartment. However, they did not get an arrest or search warrant. The District Judge who presided over the motion to suppress found as follows:

Upon arrival at the apartment building (on the evening of January 9, 1965) accompanied by a friend of the deceased who had been in the apartment with the deceased and the occupant the preceding evening and who identified the apartment in question, the police officers, observing a light reflecting...

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