United States v. Poole
| Decision Date | 17 January 1974 |
| Docket Number | No. 72-1533.,72-1533. |
| Citation | 495 F.2d 115 |
| Parties | UNITED STATES of America v. Howard T. POOLE, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Ross O'Donoghue, Washington, D. C. (appointed by this Court) for appellant.
Julius A. Johnson, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, Asst. U. S. Atty., were on the brief for appellee.
Before FAHY, Senior Circuit Judge, and LEVENTHAL and ROBB, Circuit Judges.
This is an appeal from a conviction for armed rape, armed robbery and assault with a deadly weapon. The offense took place on February 17, 1971, when a secretary to a United States Senator was accosted in the parking lot of the Senate Office Building shortly after lunch. It is contended that appellant's confession to the police should not have been admitted in evidence, that it was improperly obtained and was involuntary. We do not agree, and we affirm.
The complainant testified that she was about to get into her car when appellant grabbed the door on the driver's side, pointed a pistol at the secretary's head and threatened to "blow her head off" unless she kept quiet and moved over, which she did. He then got into the car and, still waving his pistol, drove his victim into an alley, where he ordered her to open her purse and hand him her money.
Not satisfied, and afraid he was being watched, appellant drove to an abandoned garage, ordered his victim to take off her clothes and raped her. When he was done, appellant removed a scarf from the secretary's purse and wiped portions of the automobile that he thought he had touched, for the obvious purpose of removing fingerprints.1 He then secured a charge plate with his victim's name and address and warned her that if she told anyone of his crimes, "my boys are going to come out and kill your children." With that he left.
About a week later, complainant assisted a police artist in the preparation of a composite sketch of her assailant. This was reproduced and distributed to all police in the area.
About three weeks after the rape, on March 2, 1971, Police Officers Szewczyk and Wyatt, in casual clothes, were patrolling in their squad car near the intersection of 3rd and A Streets, N.E., a place in the Capitol Hill area only a few blocks from the Senate Office Building. At about 8:15 p. m., they observed a man on foot (appellant), who, they thought, resembled the police sketch of the rapist. They noted that he did not travel the path of a person going from one place to another, but rather engaged in changes of direction and crossing streets at other than designated corner paths. At one point the man was seemingly taking a path so as to maintain covert observation of a church door nearby. When a woman was seen to leave the church, appellant started in her direction, but changed direction when it developed that she was joined by a man who left the church shortly after she did.
At this point, Officer Szewczyk decided to confront appellant directly, got out of his patrol car and, holding his badge in his hand, identified himself. He told appellant he wanted to talk with him, to which appellant replied, shouting, "what have I done, what have I done." When Officer Szewczyk asked him to take his hand out of his pocket, he fled. The police pursued, and when appellant stopped, turned, and pulled out a pistol, Officer Szewczyk removed his service revolver from his holster and pointed it at appellant and ordered him to halt. Appellant discarded an object, later identified as a .38 calibre pistol, containing five live rounds, and continued flight. When he was overtaken and searched, the police found several .38 calibre cartridges in his coat pocket. Appellant was immediately arrested, handcuffed and advised of his rights to counsel and to remain silent.
Appellant, an eighteen-year-old youth, was transported to the First District Headquarters, where he was charged with carrying a dangerous weapon. There he was held until about 11:45 p. m. He was questioned about various crimes — he admitted generally to robberies to support his $60 a day narcotics habit, but did not supply supporting details.
Appellant was advised of his rights at least four times on March 2. Immediately after his arrest, he was read Police Department Form 47.2 Subsequently, at 9 p. m., 10:35 p. m., and 11 p. m., appellant was again given the Miranda warnings, as questioning moved from one subject to another, and the officers familiar with the new subject matter were called in. On each of these latter three ocassions, appellant signed a statement stating that he had heard and understood the warnings and consented to being questioned without the presence of counsel.
Shortly after 10 p. m., officers of the Sex Squad, who had been called in view of appellant's resemblance to the composite sketch, arrived at the police station (Tr. IV-97). After the arresting officers were through, Officer Kelly of the Sex Squad and his partner went to another room where they took a photograph of appellant and pubic hair samples (Tr. IV-97-98).
Mr. Kelly testified that he then offered Poole a cigarette, and started to talk to appellant, after establishing that appellant had been advised of his rights (Tr. IV-100). Officer Kelly confronted appellant with the fact "that he was a very good look-alike as far as the composite and if the complainant could make a composite that well of a suspect by a drawing, that if she saw a photograph of the suspect, she most likely could identify him." (Tr. IV-98). Officer Kelly also told Poole of the possibility that there could be identification through fingerprints and analysis of the pubic hair. (Tr. IV-98). When they were alone, Officer Kelly offered Poole another cigarette, and Poole asked about the possibility of a high bond. Mr. Kelly told appellant that if he wanted to confess they could go to the Sex Squad, but there would be no promises. Appellant then looked around a little bit, and said, "Okay, let's go to the Sex Squad." On questioning, he said he had raped the secretary, and he gave details that included items which had never appeared in the press. At that point, Officer Kelly stopped appellant, they went to the Sex Squad, arriving about 11 p. m., and there appellant, advised again of his rights, agreed to make a written statement to an officer sitting at the typewriter. A pretrial motion to suppress this written statement was unsuccessful. At trial, the confession was offered in evidence and admitted over objection.
When appellant appeared in a lineup, with counsel present, on March 16, 1971, the complaining witness, admitting nervousness, did not identify him, identifying tentatively someone else. A few weeks later, after testifying before the grand jury, she asked Sergeant Waybright to show her a photograph of the lineup. On viewing this photograph, without any suggestion, she identified appellant as her assailant. This photographic identification, as well as an incourt identification at trial, were allowed in evidence over objection.
We may note at the outset that there are no significant legal issues in regard to the identification or the identification procedures. Appellant's legal challenges are obviated by United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), which determined that there is no right to counsel when photographs are displayed to a complainant for the purpose of identification of a suspect. In United States v. Brown, 149 U.S.App.D.C. 43, 461 F.2d 134 (1972) (en banc), we upheld the showing of a photograph of a counselled lineup in circumstances not significantly different.
In our view, the defendant, after receiving valid Miranda warnings, knowingly and voluntarily waived his rights to remain silent and to counsel. Appellant was given the warnings on the street by Officer Szewczyk when arrested at 8:35 p. m. He was read the warnings at the stationhouse at about 9 p. m. by Officer Quantrelle (Tr. II-83), who asked Poole to sign the form.3 During this conversation, Mr. Quantrelle learned of appellant's heroin addiction, but appellant gave no indication — verbal or otherwise — that he was undergoing withdrawal (Tr. II 85-86). He did not complain about his physical condition; he did not appear to be in pain; his eyes did not appear to be running (Tr. II-73). Also during this conversation, appellant admitted to having committed certain robberies, although he denied complicity in others. (Tr. II-87).
Although appellant denies being warned on the street, he admits that his rights were read to him at the stationhouse shortly after his arrival. He further expressly testified that he understood what they were saying, that he did not ask to call a lawyer, and did not tell the police he would not talk to them. (Tr. A 34-35). And the record reveals at least two other occasions upon which appellant was advised of his rights prior to confession. Although the testimony of the police was in certain respects at variance with that of appellant, compare e. g., Tr. II 95 with Tr. A 20, appellant's own testimony on this matter is somewhat inconsistent.4 The issue is one of credibility.
We conclude that appellant had the capacity to waive his rights. He claims that he was young, ignorant and easily cowed, and that as a heroin addict undergoing withdrawal he was without power to resist the blandishments of his interrogators. These assertions are not supported by the record.
The record supports the findings of the trial judge that the record establishes by ...
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