Woodard v. United States

Decision Date04 June 1970
Docket NumberNo. 22752.,22752.
Citation429 F.2d 716,139 US App. DC 37
PartiesLeslie F. WOODARD, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Lawrence P. Lataif, Washington, D. C. (appointed by this court) for appellant. Mr. William W. Greenhalgh, Washington, D. C. (appointed by this court) was on the brief, for appellant.

Mr. Robert C. Crimmins, Asst. U. S. Atty., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Thomas A. Flannery, U. S. Atty., and Roger E. Zuckerman, Asst. U. S. Atty., were on the brief, for appellee. Mr. John A. Terry, Asst. U. S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and MacKINNON, Circuit Judge.

MacKINNON, Circuit Judge:

On May 14, 1957, Woodard's prior testimony at a suppression hearing was admitted against him as affirmative evidence of guilt during his trial in which he was found guilty of robbery, interstate transportation of a forged instrument and unauthorized use of a motor vehicle. Upon conviction he was sentenced to imprisonment for a term of two to ten years for robbery and to terms of one to three years on each of the other offenses, all sentences to run concurrently. On appeal to this court he contended his motion to suppress certain incriminating evidence which police had seized at the request of the householder where Woodard was staying as a guest had been improperly denied. We affirmed in Woodard v. United States, 102 U.S. App.D.C. 393, 254 F.2d 312, cert. denied, 357 U.S. 930, 78 S.Ct. 1375, 2 L.Ed. 2d 1372 (1958). All sentences, except that for robbery, have now been fully served.

In 1968 the Supreme Court handed down its decision in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), holding that testimony given by a defendant at his suppression hearing was not admissible against him at trial on the issue of guilt. In 1967, this court had announced the same rule in Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305 (1967) (hereafter Simmons and Bailey). This appeal arises from a denial of Woodard's motion initiated in March 1967 under 28 U.S.C. § 22551 to vacate and set aside the judgment of conviction in support of which he contends that the decisions in Simmons and Bailey require retroactive effect. We decide that neither of these decisions are to be given retroactive effect and affirm.

Appellant's original petition to this court to allow his appeal without prepayment of costs was denied. Subsequently he petitioned for a rehearing en banc and we then vacated our previous order, sua sponte, and allowed the appellant to proceed in forma pauperis. The order allowing the appellant to proceed expressly limited the issue on appeal to whether the principle anounced in Simmons and Bailey applies retroactively to appellant and, if so, to what extent it affects his conviction and sentence.

The ultimate fact at issue here revolves around certain evidence introduced by the Government in the original trial consisting of admissions made by appellant at a hearing in support of his unsuccessful motion to suppress certain evidence. Appellant made the admissions for the purpose of gaining standing to attack the admissibility of certain evidence which he contended was obtained by an illegal search and seizure. The trial court denied the motion to suppress and later allowed the admissions to be introduced into evidence. We will assume, in this opinion, that the jury could not have returned a verdict of guilty without appellant's admissions.2

In Bailey we held in 1967 that the defendant's testimony at a suppression hearing could not be used affirmatively against him at trial. Later, in 1968, the Supreme Court handed down a similar decision in Simmons where the testimony of one Garrett (a co-defendant) given at his unsuccessful suppression hearing was admitted at trial over his attorney's timely objection. The Supreme Court reversed the conviction reasoning as follows:

"Thus, in this case Garrett was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection." Simmons v. United States, 390 U.S. at 394, 88 S.Ct. at 976.

Reading the Simmons and Bailey cases together, we can see that a defendant in a criminal case, in all instance,3 has the right to challenge searches and seizures without the fear of having his testimony used affirmatively against him at trial. Assuming the case at bar is one where appellant's own admissions supplied the link necessary to make out a prima facie case for the Government, we come to the question of retroactivity of the decisions.

Retroactivity has long been a topic for studies in jurisprudence and the Supreme Court has had occasion to deal with the question in criminal trials involving constitutional issues. Chief Justice Warren in Johnson v. New Jersey, 384 U.S. 719, 726-727, 86 S.Ct. 1772, 1777, 16 L.Ed.2d 882 (1966), stated:

"* * * In criminal litigation concerning constitutional claims, `the Court may in the interest of justice make the rule prospective * * * where the exigencies of the situation require such an application.\'"

In later opinions the Court defined the exigencies of the situation as (1) the purpose of the principle under consideration, (2) the extent to which law enforcement personnel may have justifiably relied upon prior law, and (3) the probable impact of the retroactive application upon the administration of criminal justice. Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

I

The purpose of the Simmons-Bailey rule is to protect defendants' Fourth and Fifth Amendment rights at trial and the purposes of the Fourth and Fifth Amendments are to protect individual rights in their persons, houses, papers and effects against invasion and to protect individuals from being compelled to give testimony against themselves. Prior to the announcement of the rule, many decisions had afforded protection to an individual's Fourth Amendment rights separately from his Fifth Amendment rights but it was not until Simmons and Bailey that the courts eliminated the "Hobson's choice" in suppression hearings that many defendants had faced over the years. It is true that the Supreme Court alluded to the problem in Jones v. United States, 362 U.S. 257, 262, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960), which quoted Judge Learned Hand:

"`Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at once to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma.\' Connolly v. Medalie, 2 Cir., 58 F.2d 629, 630."

In 1967 this court delivered its opinion in Bailey holding that a defendant could testify at suppression hearings without having such testimony used affirmatively against him at trial. It has a special bearing on this case to note, despite our holding that Bailey's constitutional rights had been infringed, that we did not reverse his conviction because the evidence taken as a whole established that the error was harmless beyond a reasonable doubt. In doing so we stated:

"We do not, however, reverse in this case because, applying the rule of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), we find beyond a reasonable doubt that appellant Frye was not prejudiced. The only issue at the hearing on his motion to suppress was whether the police had probable cause to make an arrest. In his brief on appeal Frye argues that he would have testified on the question of just when the arrest occurred. * * * Frye could not have been prejudiced since we have found that there was probable cause at the earliest possible time the arrest can in law be said to have been made. * * * If Frye wished to testify as to his non-participation, he should have done so at trial." Bailey v. United States, supra, 128 U.S.App. D.C. at 360-361, 389 F.2d at 311-312.

In Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967), Justice Clark said:

"Although our prior cases have indicated that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error, this * * * belies any belief that all trial errors which violate the Constitution automatically call for reversal."

Chapman, supra, involved the application of the rule as laid down in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), that neither the prosecutor nor the court may make comments on a defendant's failure to testify on his own behalf at trial. The Supreme Court held that the rule laid down in Griffin, supra, was not one of those constitutional rights so basic as to make every past violation of it reversible error.

Previously, Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), had also dealt with the question of the retroactivity of the rule laid down in Griffin, supra, saying:

"The Griffin opinion reasoned that such comment `is a
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    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 12 Agosto 1970
    ...rule is but a `procedural weapon that has no bearing on guilt,' and `the fairness of the trial is not under attack.'" And as we said in Woodard, "These decisions indicate that the purpose of the rule against use at trial of an accused's testimony given on a motion to suppress seized evidenc......
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    • 3 Febrero 1982
    ...a factor to be considered if the purpose of the rule does not clearly favor retroactivity or prospectivity. See also Woodard v. United States, 429 F.2d 716 (D.C.Cir.1970), which discusses why whether a new rule has been "foreshadowed" should not be determinative of That Miranda did not inev......
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    • 28 Diciembre 1970
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