Bond v. United States

• Decision Date: 02 October 1973
• Docket Number: No. 6496.,6496.
• Parties: James A. BOND a/k/a Tommie L. Debardlabee, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

310 A.2d 221

James A. BOND a/k/a Tommie L. Debardlabee, Appellant, v. UNITED STATES, Appellee.

No. 6496.

District of Columbia Court of Appeals.

Argued June 20, 1973.

Decided October 2, 1973.

Robert M. Silverman, appointed by this court, with whom Michael L. Glaser, Washington, D. C., was on the brief, for appellant.

Regina C. McGranery, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, Leonard W. Belter, and Craig M. Bradley, Asst. U. S. Attys., were on the brief, for appellee.

Before REILLY, Chief Judge, and PAIR and YEAGLEY, Associate Judges.

REILLY, Chief Judge:

This is an appeal from convictions after a jury trial for violation of D.C.Code 1967, § 22-1506 (three-card monte statute), and § 22-2201 (grand larceny). Appellant was sentenced to five years on the first charge, and five to fifteen years on the second, the sentences to run concurrently.

Appellant's arrest was based on a complaint accusing him and a confederate of engaging in a confidence game, whereby they obtained through trickery the sum of $150 from a young clerical worker, a Mrs. Francine Harper. According to her testimony, she had been induced by a passerby she encountered on Pennsylvania Avenue during her luncheon hour to befriend another stranger (the appellant), described as a confused man with a foreign accent, who was asking for directions to a particular church. He had a large amount of money on his person, which the first man — who pretended not to know him — advised him for safety reasons to deposit in a bank. As appellant professed a vast distrust of banks, the first stranger persuaded her to demonstrate the trustworthiness of such institutions by withdrawing $150 from her own checking account and placing it in a paper packet into which the supposed foreign stranger also inserted his bankroll.

Agreeing to hold the packet which contained the money of both until the stranger could retrieve some other cash he had left behind and come back to the bank to deposit it, she placed the packet in her handbag. After the two men left her, she returned to her office and discovered that she was the victim of a sleight of hand maneuver, for there was nothing in her handbag but some worthless paper. She told her employer what had happened and they reported the matter to the police.

Later that same week, she was asked to come to a police station by a detective sergeant, Robert A. Eldridge, Jr., who then showed her a number of photographs of individuals from the police files. She identified one of them as a photograph of appellant.

Five days later when she and Sergeant Eldridge were entering a building of the Superior Court to seek a warrant for appellant's arrest, she saw appellant and his confederate in the corridor and pointed them out to that officer. She again identified appellant at trial.

Sergeant Eldridge testified that after appellant and his companion had been pointed out to him by Mrs. Harper, he took her to the office of an Assistant United States Attorney for her protection, went back to the corridor to arrest the pair, but was unable to find them. After looking in vain for them in other buildings around Judiciary Square, he proceeded without a warrant to the motel where appellant was reported to be staying and arrested him and his companion as they were packing to leave the city. At the time of the arrest, Sergeant Eldridge seized certain materials from the partially packed suitcase, including "play money" and other paper he described as paraphernalia carried by professional confidence men.

Appellant did not testify. At the close of all the evidence, however, he addressed the court at some length. He adverted to some arrangement he had supposedly made with another attorney to represent him, although the latter was not present at trial. He attacked the competency of the court-appointed attorney who had represented him, raising a number of factual and legal points which he asserted counsel had failed to explore. After fully hearing him out, the trial court ruled that he was receiving effective assistance from his assigned counsel and that the trial would continue.

Appellant first contends that his warrantless arrest was illegal, as he was originally charged only with violation of D.C.Code 1967, § 22-1506, a misdemeanor, albeit an indictable one, the grand larceny charge having been added after the arrest. Appellant notes that while an arrest may be made without a warrant, if the officer has probable cause to believe a felony has been committed, this does not apply to misdemeanors (D.C.Code 1972 Supp., § 23-581) not committed in his presence, except for certain offenses specified in subsection (a) (2).

The factual predicate for this contention is based on a document in the pretrial record signed by an Assistant United States Attorney.¹ It does not appear, however, that Sergeant Eldridge had only the misdemeanor charge in mind when he took the two suspects into custody, for he testified before the grand jury that he arrested them for "grand larceny by trick." He also explained that had he gone back to the courthouse for a warrant after he was unable to find them in the vicinity, his visit to their motel room would have been fruitless as he correctly inferred that they had decided to pack up and leave the jurisdiction. He recalled that when he apprehended them, a New York car was already waiting to pick them up.²

Inasmuch as the offense of grand larceny is a felony, and as Eldridge was aware from the complainant's account of the incident that the money taken from her exceeded $100, we deem the warrantless arrest proper under the circumstances. Whether or not Sergeant Eldridge verbally characterized the particular crime for which he made his arrest at the time is immaterial. United States v. Hobby, D.C. App., 275 A.2d 235, 237 (1971). As the United States Court of Appeals for this circuit put it in Bell v. United States, 102 U. S.App.D.C. 383, 387, 254 F.2d 82, 86 (1958):

. . . this description given by the officer does not go to the question of probable cause. The question is not what name the officer attached to his action; it is whether, in the situation in which he found himself, he had reasonable ground to believe a felony had been committed . . . .

Certainly time was of the essence in the situation with which the police sergeant was confronted, and it is well settled in this jurisdiction that a warrantless arrest effectuated by unconsented entry is justified, where there is probable cause to think a suspected felon is about to flee. Dorman v. United States, 140 U.S.App.D. C. 313, 435 F.2d 385 (reargued en banc) (1970).

In view of our holding on this point, it follows that there was no error in the reception of testimony by the arresting officer concerning the nature of the articles validly seized as an incident to proper arrest. In any event, no objection was made to this testimony while these materials were being marked for identification as proposed exhibits, and any conceivable prejudice was cured by a subsequent rejection of these exhibits as irrelevant, in the absence of a showing that such items were actually used in this particular incident. Even a ruling allowing admission would not have been error. Payne v. United States, 111 U.S.App.D.C. 94, 294 F.2d 723, cert. denied, 368 U.S. 883, 82 S.Ct. 131, 7 L.Ed.2d 83 (1961).

Appellant next invokes the "poisonous tree" doctrine, contending that prior to the arrest in this case, he was...