Borum v. United States

• Decision Date: 21 December 1967
• Docket Number: No. 20270.,20270.
• Citation: 409 F.2d 433,133 US App. DC 147
• Parties: Ernest S. BORUM, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

133 US App. DC 147, 409 F.2d 433 (1967)

Ernest S. BORUM, Appellant, v. UNITED STATES of America, Appellee.

No. 20270.

United States Court of Appeals District of Columbia Circuit.

Argued June 26, 1967.

Decided December 21, 1967.

Petitions for Rehearing and before the Division Denied February 14, 1969.

Certiorari Denied May 19, 1969.

Mr. Howard C. Westwood, Washington, D. C. (appointed by this court), for appellant.

Mr. Henry K. Osterman, Special Attorney to the United States Attorney, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker and Joel D. Blackwell, Asst. U. S. Attys., were on the brief, for appellee.

Before FAHY, Senior Circuit Judge, and TAMM and ROBINSON, Circuit Judges.

Petitions for Rehearing En Banc and before the Division Denied February 14, 1969.

Certiorari Denied May 19, 1969. See 89 S.Ct. 1765.

SPOTTSWOOD ROBINSON, III, Circuit Judge:

On the morning of June 14, 1965, a male intruder entered a residence and stunned an 80-year old occupant by inflicting a number of blows with a pistol. Somewhat later, a laundryman making a call was confronted by the intruder who at gunpoint took $285 from him, and left him bound and gagged in a bedroom. Shortly thereafter, a female neighbor came into the house, whereupon the intruder, pistol in hand, allegedly forced her to undress and submit to sexual intercourse with him.

As soon as the intruder left, the rape complainant reported these occurrences. Two articles taken for examination during an immediate police investigation of the premises contained fingerprints matching appellant's.¹ This led to his arrest on July 6, and an ensuing lineup at which the rape complainant identified him as her assailant.

Appellant was placed on trial on an eight-count indictment, and the rape complainant identified him again.² The jury, against his showing on alibi, found him guilty on six counts,³ on each of which a sentence of imprisonment was imposed. His appeal counsel tenders for our consideration three questions, ably briefed and argued, which we find need to discuss.⁴ We affirm the conviction but remand the case with a direction as to the sentences.

I

When appellant surrendered to the police, his trial attorney, who accompanied him, requested that she be informed as to when a lineup would be held, leaving her card for this purpose and stating her desire to be present. Appellant testified that he had apprehensions about the lineup and wanted his counsel there as a safeguard against the unfairness of any identification. But without notice to counsel and in her absence, appellant was placed in a lineup and identified by the rape complainant. And at the trial the complainant not only again identified appellant in the courtroom, but also testified to her prior identification at the lineup.

Appellant asserted prejudice of constitutional dimension as a consequence of the lineup conducted in the absence of his attorney, but it is clear that the contention so postulated must be rejected. In United States v. Wade⁵ and Gilbert v. State of California,⁶ decided while this appeal was pending, the Supreme Court held that a lineup is a critical stage in the criminal proceeding at which the Sixth Amendment secures the accused's right to assistance of counsel. In Stovall v. Denno,⁷ however, the Court declared that this constitutional rule is prospective in its operation, with the result that this litigation remains unaffected by it.⁸

Appellant now urges that we are free to apply retroactively the Wade-Gilbert principle, not as a matter of constitutional compulsion, but in the exercise of our supervisory power over the administration of criminal justice in the District of Columbia. He points to the fact that what is involved here is not a claim that he should have been supplied a lawyer for the lineup;⁹ rather, he emphasizes that it was his retained counsel who asked for notification of the lineup, and that for some unexplained reason the request was not honered. He suggests that our disposition might be tailored to fit past pre-trial confrontations only when they are of that type.

We perceive some merit in this contention, and are ourselves concerned over the collapse, albeit unintended, of counsel's arrangements,¹⁰ but there are more powerful considerations on the other side. The factors¹¹ which render unfeasible a retroactive application of the wholesome doctrine expounded in Wade and Gilbert operate equally to persuade us against an antithetical use of our supervisory authority. Indeed, our decisions since Stovall have consistently observed the non-retroactivity of Wade and Gilbert,¹² and we think that it was implicit in these holdings that our supervisory powers would not have been wisely exercised by doing otherwise.

Nor can we accept appellant's thesis that we might more appropriately confer retroactivity if it is confined to situations where the suspect had counsel who sought affirmatively to arrange for attendance at the lineup. We recognize that a dispensation so limited would ordinarily benefit only those who were financially able to engage counsel at or very shortly after arrest, and we are sensitive to the fact that most defendants in criminal cases in this jurisdiction could not have done so.¹³ We are unwilling to fashion a rule the practical operation of which would discriminate between two classes of persons distinguishable only on the basis of wealth.¹⁴

II

The evidence showed that the rape complainant promptly submitted to a medical examination, in the course of which vaginal smears were obtained for testing. A pathologist testified that analysis revealed that the smears contained human spermatozoa. In his charge to the jury, the trial judge instructed that corroboration of the complainant's testimony was essential to a conviction of rape, and that the jury, in ascertaining whether it was, might "consider all the facts and circumstances surrounding the alleged" act, including, among several the judge mentioned, "the medical testimony * * * as to the presence of spermatozoa in her vagina."¹⁵

Appellant now argues, however, that the judge erred in telling the jury that, the circumstance quoted might be considered on the issue of corroboration.¹⁶ Reference is made to expert testimony to the effect that the spermatozoa could have been deposited as much as 72 hours before they were found, and to the fact that the complainant was married and living with her husband. We are told that, with this, the discovery was neutral in significance and valueless as confirmation of any part of the complainant's story. And because one can only assume that the jury, compliably with the instruction, treated this circumstance, it is urged that the affirmative finding of corroboration which the verdict of guilt reflects is suspect.

In rape prosecutions, "corroboration, in the sense that there must be circumstances in proof which tend to support the prosecutrix' story, is required."¹⁷ While the matter of corroboration is initially for the trial court, like any other question as to the legal sufficiency of the evidence to warrant submission of the case to the jury, it is the latter's function to decide whether the standard of corroborative proof has been met.¹⁸ It goes without saying that the trial court must afford the jury proper and adequate guidance to enable that determination.

In our view, however, the challenged reference in the charge was not to any extent an abnegation of that responsibility. Certainly, the probative value of this development would have increased greatly had there been proof that the complainant had not, during the 72-hour period prior to the discovery, had sexual relations with anyone other than the intruder. But we think that when the disputed item is examined in the light of other corroborating evidence, the absence of such proof did not eradicate its tendency to in some degree lend credence to the version the complainant related from the witness stand. What we have here is an instance of the familiar phenomenon of a circumstance, ostensibly impartial when seen in isolation, absorbing color when viewed with its surroundings. When what appellant claims is a neutral factor is examined in total evidentiary context, it loses a good deal of its neutrality.

The record discloses an abundance of independent evidence corroborating the complainant. Spermatozoa were found, not only in her vagina, but on her underclothing as well. The occupant of the invaded residence saw the complainant when she entered, and the laundryman heard the complainant's entry and a brief conversation she then had with the intruder.¹⁹ The complainant reported that she had been raped, to the laundryman at the house, and to both her husband and the police by telephone, as soon as the intruder departed. The laundryman, having extricated himself, observed the complainant standing, completely nude, with a telephone in her hand. He said that she was hysterical and the examining physician somewhat later found her to be tense and upset. The testimony of the two people in the house other than the complainant describing their own treatment by the intruder portrays an individual bent on criminality. And the fact that appellant's fingerprints were found at the scene had a more than ample tendency to lend confirmation to the complainant's identification.²⁰

There is much else in the record to suggest the complainant's testimonial reliability. No observational deficiencies or handicaps appear, and she had both ample reason and opportunity over a 30-minute period to take a hard look at her assailant. The identification, at the trial as well as at the lineup, was positive. There is no indication that she was exhorted to identify him as the culprit, or that she was ambivalent when she undertook to do so. The indicia of emotional instability and motive for falsification are absent, as well as...