McRae v. United States, 21980.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation420 F.2d 1283,137 US App. DC 80
Docket NumberNo. 21980.,21980.
PartiesJack W. McRAE, Appellant, v. UNITED STATES of America, Appellee.
Decision Date10 June 1969

Mr. Stephen A. Trimble, Washington, D. C. (appointed by this court) for appellant.

Mr. Robert A. Ackerman, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, and Frank Q. Nebeker, Asst. U. S. Atty., at the time the brief was filed, were on the brief, for appellee.

Before BAZELON, Chief Judge, PRETTYMAN, Senior Circuit Judge, and ROBINSON, Circuit Judge.

BAZELON, Chief Judge.

The appellant advances a spate of reasons why his conviction for rape and assault with a dangerous weapon should be reversed. We agree with his contention that the trial judge erred under the circumstances in re-examining the pretrial decision by a different district judge to grant the defendant's motion to suppress various items of physical evidence seized at and after the time of his arrest. We also find that the out-of-court confrontation between the appellant and his alleged victim was unnecessarily suggestive. The present record does not permit a determination whether an independent source exists for either the out-of-court or in-court identifications; we consequently leave those issues for resolution at a new trial.

I

Mrs. Emma Allen, a divorced mother of seven, testified that a young man knocked at her door about ten o'clock one evening in March 1967 and asked for her son Gregory. When told he was not at home, the visitor said he had come for a pair of football cleats he had lent Gregory. Mrs. Allen, leaving the front door open, went to the basement to look for the shoes. Moments later, the young man burst down the stairs exclaiming that he didn't want any shoes, he wanted her. After forcing Mrs. Allen into a closet where she momentarily fought him off, he raped her upon two couch cushions placed on the basement floor. When she attempted to scream, her assailant slashed her face with a knife. The deed completed, he led his victim upstairs at knifepoint and left by the front door.

Shortly thereafter, two other friends of Gregory came to the door asking for him. When Mrs. Allen told them she had been attacked, they left to find her son. She waited about an hour, then concluded their search was unsuccessful and set off for the hospital herself, leaving a note for Gregory. A cab driver saw her crying on the street corner and, although she had no money, took her to the hospital emergency room. She told a police officer there what had happened, and shortly her son appeared at the hospital. Mrs. Allen told him that one of his friends had raped her. Gregory told the police that he could not recall the friend's name, but only one boy approximating his mother's description would have known of the football cleats. Since he knew the house where this individual lived but not the address, Gregory set off with the police to apprehend the suspect. They first went to the home of the appellant's father, who told the police his son no longer lived there but gave them another address. When the police went to the door there — Gregory remaining in the squad car — a young child of about 11 answered their knock. The police announced their identity, and asked if Jack McRae was at home (having learned their suspect's name from his father). The child said nothing, but pointed to a man sleeping in a chair at the other side of the small room. The police entered and arrested him, seizing at the time a knife lying on the arm of the chair.

The police officers then drove to the hospital to allow Gregory to rejoin his mother and to see if she could identify McRae. Mrs. Allen walked out from the emergency room and looked into the back seat of the squad car where the appellant, a Negro, was seated beside a white police officer. She identified McRae, and the police then took him to the police station. Several hours later, at about five in the morning, the police took the appellant's clothing for examination, as well as head and pubic hair samples. At ten the next morning, McRae was presented to a committing magistrate.

His attorney moved before trial for suppression of the physical and identification evidence. At a hearing before Judge Jones on November 3 at which the arresting officer testified, the defense counsel argued that the police had not announced their identity and purpose before entering McRae's apartment. In addition, counsel argued that the confrontation in the police cruiser outside the hospital was unnecessarily suggestive and that the police had violated Rule 5(a) of the Federal Rules of Criminal Procedure by not presenting McRae to a committing magistrate until the morning following his arrest.

Judge Jones declined to rule upon the identification issue, preferring instead to leave that question for resolution at trial. He did, however, suppress the physical evidence seized at the time of the arrest and at the police station, granting leave to the Government to file a memorandum requesting reconsideration. On November 9 the Government filed an eleven-line memorandum arguing that "the validity of the arrest and search must be sustained when determined by reasonableness in the light of the circumstances of this particular case." The defense filed a memorandum in reply on November 15 which distinguished the single case cited by the Government, Washington v. United States, 105 U.S.App.D.C. 58, 263 F.2d 742 (1959), as one approving a peaceable entry.

Judge Jones entered another order on November 21 again suppressing the physical evidence, and denied a new motion for reconsideration by the Government on February 9, 1968. When the trial began on February 12 before Judge Matthews, however, the Government again attacked Judge Jones' decision to suppress the physical evidence, asserting that the record was insufficient for the trial court to determine whether there had been substantial compliance with the requirement of announcement of authority and purpose and whether the safety of the arresting officers justified partial noncompliance. Judge Matthews concluded that further testimony was necessary, and at the completion of a fresh hearing ruled that the knife, clothing and hair samples would be admissible. At the same time she concluded that the hospital confrontation was not prejudicially suggestive and denied a motion by the defense for an in-court lineup.

II

The appellant argues that since the Government could not appeal directly from Judge Jones' order before trial suppressing the physical evidence seized in his apartment and at the police station, see Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957),1 it should not be able to achieve the same result indirectly by requesting the trial judge to re-examine the pretrial ruling. There is, we agree, a certain functional similarity between appellate review and re-examination by another judge of the same court. But the differences between appellate review and reappraisal of a pretrial ruling at trial refute this functional analysis. Judge Matthews did not determine, as would an appellate court, whether Judge Jones committed an error of law or made a clearly erroneous finding of fact. Her purpose in hearing further testimony upon the suppression issue was rather to make a de novo determination, which she concluded her responsibilities as trial judge required since "the basis of Judge Jones' ruling is not clear to me."

Moreover, the argument that re-examination at trial should be barred because it achieves the same result as appellate review proves too much. For while the Government cannot appeal directly from a ruling upon a pretrial motion to suppress, neither can the defendant. Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275 (1929). But the law is clear that the defendant can in some circumstances secure a fresh determination at trial concerning the admissibility of seized evidence after a denial of his pretrial motion to suppress. See Gouled v. United States, 255 U.S. 298, 312-313, 41 S.Ct. 261, 65 L.Ed. 647 (1921); Rouse v. United States, 123 U.S.App.D. C. 348, 349-350, 359 F.2d 1014, 1015 (1966); Anderson v. United States, 122 U.S.App.D.C. 277, 279, 352 F.2d 945, 947 (1965).

The appellant also argues that the Government was collaterally estopped from relitigating the suppression issue after Judge Jones had made a pretrial ruling. This reasoning would also lead too far, since no reason is suggested why the defendant in a criminal case would not also be collaterally estopped from challenging evidence at trial after the denial of a pretrial suppression motion. But the defendant can raise such a challenge without encountering problems of res judicata or collateral estoppel, since these doctrines come into play only when there has been a final adjudication in a separate proceeding. See, e. g., Moore v. United States, 120 U.S.App.D.C. 173, 174, 344 F.2d 558, 559 (1965). Here, unlike such cases as Steele v. United States No. 2, 267 U.S. 505, 45 S.Ct. 417, 69 L.Ed. 761 (1925), and Laughlin v. United States, 120 U.S. App.D.C. 93, 344 F.2d 187 (1965), there was no separate prosecution or lawsuit. The order suppressing the evidence seized was granted at a preliminary stage of the same criminal case, and it would beg the question to conclude that this was a final decision binding upon the government. Consequently, we derive no guidance in the doctrine of collateral estoppel.

Neither, however, can we find guidance in prior decisions by this or other federal courts of appeals dealing with the specific question presented. Attention has been paid to the problem of whether a defendant may or must renew a motion to suppress at trial after a pretrial denial, and whether either the Government or the defendant may appeal directly from a pretrial...

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