543 F.2d 312 (D.C. Cir. 1976), 73-1635, United States v. Crowder

Docket Nº:73-1635.
Citation:543 F.2d 312
Party Name:UNITED STATES of America v. James L. CROWDER, Appellant.
Case Date:July 12, 1976
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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543 F.2d 312 (D.C. Cir. 1976)

UNITED STATES of America

v.

James L. CROWDER, Appellant.

No. 73-1635.

United States Court of Appeals, District of Columbia Circuit

July 12, 1976

Argued en banc Oct. 14, 1975.

William Gray Schaffer, Philadelphia, Pa. (appointed by this Court), for appellant.

Silas Wasserstrom, Washington, D. C., with whom Frederick H. Weisberg, Washington, D. C., was on the brief for Public Defender Service as amicus curiae.

Hamilton P. Fox, III, Asst. U. S. Atty., Washington, D. C., for appellee. Earl J. Silbert, U. S. Atty., John A. Terry, Garey G. Stark, and Gregory C. Brady, Asst. U. S. Attys., Washington, D. C., at the time the brief was filed, were on the brief for appellee. James F. McMullin, Asst. U. S. Atty., Washington, D. C., also entered an appearance for appellee.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.

Opinion for the court filed by Circuit Judge ROBB. Circuit Judges McGOWAN, TAMM, MacKINNON and WILKEY joined in the opinion.

Separate concurring opinion filed by Circuit Judge McGOWAN.

Dissenting Opinion filed by Circuit Judge LEVENTHAL.

Dissenting Opinion filed by Circuit Judge ROBINSON, with whom BAZELON, Chief Judge, and WRIGHT, Circuit Judge joined.

ROBB, Circuit Judge:

A jury in the District Court found the defendant Crowder guilty of second degree

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murder, robbery and carrying a dangerous weapon. The district judge sentenced him to concurrent terms of imprisonment of five to twenty years, five to fifteen years, and one year respectively. On this appeal he contends the district judge erred (1) in receiving in evidence a bullet which pursuant to a court order had been surgically removed from the defendant's forearm without his consent, and (2) in denying his request for an instruction on self-defense. Finding no error we affirm the conviction.

The Admission of the Bullet

As we shall see the bullet that was surgically removed from Crowder's arm proved to be damaging evidence against him. He contends that the operation was an unreasonable intrusion into his body and therefore violated his Fourth Amendment rights. Considering this argument in the light of all the facts and circumstances, we reject it.

On the afternoon of December 18, 1970 Dr. James E. Bowman, a dentist, was murdered in his office. Death was caused by a gunshot wound entering his chest and coursing through his heart. A caliber .32 slug was recovered from his body, and another caliber .32 slug, which apparently had passed through his body, was found in his underwear. The police found a caliber .32 Smith & Wesson revolver on the ground, across the street from the doctor's office. The revolver contained four expended rounds and two live rounds. It had been kept in the doctor's office and was registered to his wife.

On December 23, 1970 the police arrested one Sandra Toomer, charged her with the murder, and she in turn implicated Crowder. She told the police that she and Crowder had gone to the doctor's office intending to rob him. When Crowder confronted the doctor with a toy pistol, she said, a scuffle ensued, she ran, and she then heard gun shots. Rejoining her, Crowder told her he had been shot in his arm and his left leg, but he thought he had killed the doctor. She observed Crowder's wounds.

Acting on the information given by Sandra Toomer the police arrested Crowder. They noted that his right wrist and left thigh were bandaged. They took him to D.C. General Hospital where x-rays disclosed a bullet lodged in his right forearm and another in his left thigh. The bullets appeared to be caliber .32 slugs. Crowder refused to be treated for his wounds.

As might be expected the police and the prosecutor thought it important to determine whether the slugs in Crowder's arm and leg had been fired from the Bowman revolver. Accordingly, on February 10, 1971 the United States Attorney presented to Chief Judge Curran of the District Court an application for an order authorizing the surgical removal of the bullet from Crowder's arm. The application was supported by an affidavit from Detective Richardson of the Homicide Unit, Metropolitan Police, narrating in substance the evidence that we have set out. In addition, the United States Attorney tendered an affidavit from Dr. Marcus Goumas, Senior Medical Officer at the District of Columbia jail where Crowder was incarcerated. Dr. Goumas affirmed that x-rays of Crowder's left thigh and right forearm revealed the presence of metallic foreign bodies resembling bullets. Dr. Goumas expressed the opinion

that it would be medically inadvisable to remove surgically the slug from Mr. Crowder's left thigh because such a procedure might cause the reduction of use or function of his left leg. The slug in his right forearm, however, is lying superficially under the skin. It is therefore my medical opinion, based upon reasonable medical certainty, that the surgical removal of the slug would not involve any harm or risk of injury to Mr. Crowder's arm or hand or the use thereof. The surgical removal of the slug would be considered as minor surgery. If authorized, it will be performed in accordance with accepted medical practices by one or more surgeons in an operating room at D.C. General Hospital under a local anesthetic. Mr. Crowder will probably be hospitalized for a few days in D.C. General

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Hospital after this surgery to guard against possible infection.

The United States Attorney's application came on for hearing before Chief Judge Curran on February 10. The defendant Crowder appeared with counsel and objected to the entry of the requested order. Dr. Goumas took the stand and in response to questions by Crowder's counsel testified that the bullet in Crowder's right arm "entered the lateral aspect of the . . . arm and then extended distally and it ended superficially, roughly about three inches or so from the point of entrance. It was a very superficial wound . . . ." The wound was "so superficial" said the Doctor, that removal of the bullet would not affect any radioulnar or medial nerves. "(I)t is a superficial lesion, just like removing a small sebaceous cyst; it would not produce any lasting defect that I can envision." He concluded that the operation could be done under a local anesthetic, and the risk involved would be similar to the risk in "crossing the street".

Chief Judge Curran found probable cause to believe that Crowder murdered Dr. Bowman and that "evidence or instrumentality of that offense" was located in Crowder's right forearm and left thigh. This finding is not challenged. Further, the judge found:

It is medically inadvisable to remove surgically the slug from James L. Crowder's left thigh because this procedure might cause the reduction of use or function of his left leg. However, the surgical removal of the slug in his right forearm which is lying superficially beneath the skin would not involve any harm or risk of life or injury to James L. Crowder's arm or hand or the use thereof.

On the basis of his findings, and citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the judge ordered:

  1. That the Superintendent of the District of Columbia General Hospital, or his authorized representative or representatives, shall remove from the right forearm of James L. Crowder the foreign matter disclosed by x-rays and positively believed to be a .32 caliber slug;

  2. That such removal is to be done at the District of Columbia General Hospital with accepted medical procedures, with due regard given to the health and preservation of life of James L. Crowder;

  3. That if at any time during the course of the removal procedures danger to the life of James L. Crowder develops, such removal procedures shall cease and such other steps as may be necessary shall be taken to protect the health and life of James L. Crowder; and

  4. That after removal of the foreign matter, such matter shall be turned over to an authorized representative of the Metropolitan Police Department, who is to make a return to the Court in accordance with requirements of Rule 41 of the Federal Rules of Criminal Procedure.

  5. The defendant shall not tamper with or disturb the wound in his right forearm, or remove, destroy or dispose of the bullet lodged therein.

A petition for a writ of prohibition against the execution of Chief Judge Curran's order was denied by this court on March 2, 1971. (McGowan and Leventhal, JJ.)

On April 9, 1971, at D. C. General Hospital, Dr. Henry H. Balch removed the bullet from Crowder's right arm. Thereafter a motion to suppress the bullet as evidence was filed by Crowder, a hearing on the motion was held before District Judge Waddy, and Dr. Balch appeared and testified. The record of the hearing discloses that Dr. Balch was a qualified general surgeon who had been practicing his specialty since 1948. He was chief medical officer in surgery at the District of Columbia General Hospital, Director of Georgetown University Surgical Division at the hospital, and special professor of surgery at Georgetown University Medical School. The surgery was done in the major operating room of the hospital. Another surgeon was present as the doctor's assistant, along with a registered nurse. Describing the operation Dr. Balch explained that the skin over the bullet

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"was carefully prepared with an antiseptic solution to make it clean, surgically clean. Sterile instruments were used. The surgeons were scrubbed and gowned and gloved and had masks on. . . . So the maximum precautions that we ordinarily take surgically were used." The bullet "was lying on the upper outer aspects (sic) of the right forearm under the skin, easily . . . seen and...

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