416 F.2d 776 (D.C. Cir. 1969), 21031, Pendergrast v. United States

Docket Nº:21031.
Citation:416 F.2d 776
Party Name:Willie E. PENDERGRAST, Appellant, v. UNITED STATES of America, Appellee.
Case Date:January 31, 1969
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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416 F.2d 776 (D.C. Cir. 1969)

Willie E. PENDERGRAST, Appellant,


UNITED STATES of America, Appellee.

No. 21031.

United States Court of Appeals, District of Columbia Circuit.

January 31, 1969

Argued April 11, 1968.

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Mr. Milton A. Kallis, Washington, D.C., (appointed by this court) for appellant.

Mr. William G. Reynolds, Jr., Asst. U.S. Atty., with whom Messrs. David G. Bress, U.S. Atty., and Frank Q. Nebeker and William H. Collins, Jr., Asst. U.S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and McGOWAN and ROBINSON, Circuit judges.


Shortly after midnight on a February morning in 1966, Grady Johnson and Henry Ussery, while walking along a sidewalk, were attacked by several men. A wallet, a watch and a small sum of money were taken from Johnson, and a watch and a penknife from Ussery. Within a few minutes, police officers, responding to a reported shooting in the same block, arrived at the scene. Soon gathered there, too, were a number of spectators, among whom our appellant was standing.

Ussery, bruised and bleeding about his face, informed Officers Arthur G. Delaney and Rudolph Scipio of the attack, and pointed to appellant-- a stranger to him-- as one of the robbers. Though somewhat excited, and admittedly having been drinking prior to the incident, 1 Ussery

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insisted that he was positive in his identification. 2

Officer Scipio then approached appellant and inquired as to what he was doing in the area. Appellant replied that he had just left a party, and was taking a walk to get some fresh air. The officer then informed appellant of Ussery's accusation, which appellant denied, and proceeded to arrest him. A concomitant search uncovered on appellant's person the watch taken from Johnson, and the watch and penknife stolen from Ussery. 3

Indicted in two counts of robbery, 4 appellant moved unsuccessfully, on Fourth Amendment grounds, to suppress the two watches and the penknife. In addition to Ussery's in-court identification of appellant as one of the assailants, the Government introduced the watches and penknife into evidence. In due course, the trial judge instructed the jury that from appellant's possession of those items, if not satisfactorily explained, an inference of guilt might be drawn. The jury, rejecting appellant's testimony that he had found the articles in the street, 5 convicted on both counts.

This appeal brings before us appellant's several contentions, together with an issue which we have raised on our own. These we discuss, in ensuing parts of this opinion, with a view to determining whether the proceedings in the District Court were infected with prejudicial error. Concluding that they were not, we affirm.


Appellant's motion to suppress the introduction of the watches and penknife came on for hearing prior to trial, and his counsel made known his desire to testify at the hearing without impairing his Fifth Amendment rights at trial. The judge 6 ruled, however, that 'if he says anything that might incriminate him here, it can be used in the trial of the case. * * *' 7 Confronted with that possibility, appellant elected not to testify on the motion, though he did take the witness stand at the trial.

This ruling occurred prior to our decision in Bailey v. United States 8 and before the Supreme Court decided Simmons v. United States. 9 Simmons held that a defendant's testimony in support of a motion to suppress evidence on Fourth Amendment grounds cannot over objection be used against him on the issue

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of guilt at trial. 10 Bailey decided similarly that a defendant may testify at the suppression hearing without waiving his Fifth Amendment privilege against self-incrimination. 11 The rationale of both cases is that a defendant cannot constitutionally be compelled to surrender his Fifth Amendment protection against self-inculpation in order to safeguard his Fourth Amendment exclusion claim. 12 Quite obviously, if these principles are to be applied to the ruling in this case, there is serious question whether the conviction can stand. 13

Appellant did not assign the ruling as error, or allude to it in brief or oral argument; rather, we discovered it upon our review of the record. We then requested counsel for appellant and the Government to file supplemental memoranda addressed to the problems potentially posed. Now, after careful consideration of these memoranda, we are convinced that these problems merit our attention.

As we have stated, Simmons and Bailey were announced after appellant's trial was completed. Without benefit of the Simmons-Bailey constitutional interpretations, the District Court's action on appellant's request for testimonial immunization was squarely supported by the overwhelming weight of prior federal judicial authority. Not only in this circuit, 14 but in fully half of the remaining circuits as well, 15 the admissibility at trial of the accused's testimony on an unsuccessful motion to suppress was the accepted rule. And viewing the situation realistically, we recognize the possibility that the combination of events dissuaded appellant from raising the issue on this appeal. 16

It goes without saying that ordinarily we do not pass on issues which the parties have not tendered for decision. 17 But we are also sensitive to the fact that we sit 'not only to correct error in the judgment under review but to make such disposition of the case

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as justice requires.' 18 Additionally, 'in determining what justice does require, the Court is bound to consider any change, either in fact or law, which has supervened since the judgment was entered.' 19 Appellant invoked in the District Court the privilege that Simmons and Bailey subsequently made plain he was at liberty to exercise. And if the applicability of those decisions to appellant's episode is not decided while this case is still in the line of direct appeal, appellant may be foreclosed from urging the point at all. 20 With substantial rights hanging in the balance, elemental justice requires our determination whether appellant can reap any benefit from the Simmons-Bailey holdings. 21

At the outset, we note that it was the court's ruling that apparently caused appellant to abandon his original plan to testify at the suppression hearing. 22 At the very least, the Government has not shown that appellant's change of mind was not a result of the court's statement on potential use of his hearing testimony at trial. 23 And it is evident that there was error of constitutional dimension if appellant was hurt by that ruling. 24

The Supreme Court did not in Simmons, nor did we in Bailey, indicate any view as to whether the doctrine they proclaimed should be applied in retrospect. Retroactivity of newly-pronounced constitutional rules is a matter to which the Constitution does not speak; 25 a problem, too, not automatically resolved by the constitutional provision upon which the new rule is based. 26 The parties have treated the situation here as one calling for a declaration that the Simmons-Bailey rule is completely retroactive or that it is not retroactive at all. We think, however, that the problem, properly defined, does not confine the decisional choice to these two alternatives.

Certainly Simmons and Bailey do not possess the characteristic of 'pure prospectivity' 27 -- limitation of the constitutional canon they announced to future cases, even to the exclusion of Simmons and Bailey themselves 28 -- since the litigants in each of those cases enjoyed all that the canon could confer. 29

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Nor is the question before us whether Simmons and Bailey enjoy total retroactivity, 30 since appellant's conviction is not yet final. 31 New constitutional adjudications have frequently been applied to cases pending on direct appeal at the time of the adjudication though their benefit would not be extended to collateral proceedings. 32 There occurs to us but one possible reason, next to be discussed, why Simmons and Bailey might not be available to appellant.

Some principles derived by constitutional construction are of such nature that their operation has been judicially restricted to offending activities occurring after they are pronounced. 33 In terms of this litigation, the question would be whether the Simmons-Bailey doctrine should be similarly limited to future legal proceedings of an infringing character. This is a question, however, as to which we deem it unnecessary to express a view. We have examined the record to ascertain whether, in the light of the Simmons-Bailey standard, appellant could have been prejudiced in consequence of the fact that he did not testify at the pretrial hearing of his motion to suppress, and we are satisfied that he was not. In this fashion we discharge our responsibility under Simmons and Bailey without venturing an opinion as to whether, had he been injured, those holdings would prompt reversal of his conviction.

The only issue appellant raised by his motion to suppress was whether Officer Scipio had probable cause to arrest him, and the Government's proof on probable cause was abundant. 34 But notwithstanding the pretrial ruling that the Government might introduce the watches and penknife seized from appellant, justification for arrest became the subject of repeated inquiry by defense counsel at the trial. 35 Government witnesses were extensively cross-examined in that regard and, as we have stated, appellant took the stand in his own behalf, and

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elaborated the circumstances surrounding his arrest. Examination of appellant's trial testimony reveals that it was not significantly variant from the...

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