Bowles v. United States, 21948.

Citation439 F.2d 536
Decision Date20 November 1970
Docket NumberNo. 21948.,21948.
PartiesDaniel J. BOWLES, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Mr. Isaac N. Groner, Washington, D. C., with whom Mr. David Epstein, Washington, D. C. (both appointed by this Court) was on the brief, for appellant.

Mr. Philip L. Kellogg, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and Roger E. Zuckerman, Asst. U. S. Attys., were on the brief, for appellee.

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

Argued En Banc November 24, 1969.

On Hearing En Banc

LEVENTHAL, Circuit Judge:

This is an appeal from a judgment entered on convictions of murder in the first degree (homicide while attempting to perpetrate a robbery) and of assault with intent to rob. The principal questions presented for decision are: (1) whether there was sufficient evidence to support the jury's verdicts; (2) whether a knife seized from the person of appellant should have been suppressed as the fruit of an illegal, warrantless arrest; (3) whether appellant should have been permitted to call a witness who had indicated that he would claim his Fifth Amendment privilege against self-incrimination. We affirm.

I. The Sufficiency of the Evidence

Detective Wilson of the Metropolitan Police testified for the Government that in the early hours of the morning of March 14, 1967, responding to a call, he discovered in an alley in the rear of 1423 R Street, N. W., the deceased, Donald W. Ingham, lying face down with blood coming from his mouth and nose. One of the deceased's pants pockets was turned inside out and torn. On the ground near the body were a billfold belonging to the deceased, scattered change, and the keys to deceased's car, parked several blocks away. There was also a wrist identification type bracelet which belonged to the deceased who, it developed, was a serviceman, although clad at this time in dark civilian clothes.

Ingham was pronounced dead on arrival at the hospital at 3:50 a. m. The doctor who performed the autopsy testified that the cause of death was a knife wound in the chest, a wound that could have been inflicted with a hard blow of the knife found on appellant at the time of his arrest.

The chief evidence for the Government, however, was the testimony of Mary Burwell, with whom appellant's mother lived. She said that between 8 and 9 p. m., March 14, appellant came to the apartment, sat on the bed beside his mother, asked whether her nerves were all right, and said he had something to tell her, that he had killed a man, a soldier, in the back of an alley on R Street. She stated that appellant showed them a knife while he was telling them about the event. She was asked if appellant had said why he killed the soldier. She answered, "No, he said he don't like for anyone to put their hands in his face." Other Government testimony established that there were no other killings involving servicemen on March 13 or 14; and that the two other alley killings that weekend were remote in either time or place, and both had been solved.

Although the question is close, we think this evidence was sufficient to place all the charged counts before the jury. Appellant's confession to his mother in the presence of Mary Burwell, together with the circumstances that no other killings of this type had occurred in the vicinity during the time in question, provides a basis from which the jury could conclude that it was appellant who stabbed the deceased.

A more difficult issue, though, is the sufficiency of the proof that when appellant assaulted the deceased he did so with the intent to rob thereby making the killing a felony murder. Sometimes an intent to rob can be inferred from little more than the assault itself.1 Here, however, we have no witness to the assault, and the circumstances of a nighttime fight in an alley with a soldier in civilian clothes are consistent with purposes other than robbery. What provides a legally sufficient foundation for the jury's finding of an intent to rob is that coupled with the assault there was evidence — the pocket ripped and turned inside out, the billfold discarded nearby, the change scattered about — that the deceased was robbed. This evidence concerning the appearance of the scene after the assault is probative of attempted robbery and sufficiently narrows the ambiguity residing in the mere fact of assault.2

Counsel argues that someone not involved in the stabbing may have gone through the pockets of the deceased sometime after the killing and before the body was discovered. That is a possibility,3 but we are unable to say that it is a possibility that required the jury to entertain a reasonable doubt as to defendant's purpose. We think the prosecution evidence was sufficient to avoid a verdict directed for defendant at the end of the prosecution's case.

With a starting point, established by plainly adequate evidence, that defendant killed the deceased, the other facts suffice as circumstantial evidence to warrant an inference of the intent of robbery, subject to being negatived by some other explanation by the defendant. He did not provide such explanation, but instead offered defenses which the jury disbelieved: a defense of alibi, coupled with the claim that he had been joking when he told his mother of the killing, and that he had been told by one Raymond Smith that Smith had committed the killing.

We cannot say that on this record that the jury which was morally convinced of his intent to rob must be charged with abdicating reason.

II. Validity of Arrest and Seizure of Weapon

This case was set down for argument en banc together with Dorman v. United States, decided April 15, 1970,4 because it too raised the issue of the validity of a warrantless arrest. As with Dorman, we remanded to the District Court for further elaboration of the circumstances surrounding the arrest and analysis of the legal issues involved. We have reviewed the findings of fact and conclusions of law filed by the District Court and conclude that they adequately support the court's overall conclusion that the arrest of appellant and seizure of a knife found after a search of his person was valid.

The following situation appears from the trial transcript and remand findings:

By noon of Saturday, March 18, 1967, the police had obtained written statements from appellant's mother and Mrs. Burwell recounting his confession to the killing of a soldier on March 14. These statements included the information that appellant had told his mother and Mrs. Burwell that he was going to kill again before being taken into custody. But although the police had learned from appellant's mother and Mrs. Burwell that appellant often came to Mrs. Burwell's house at 7:00 o'clock on Sunday evenings to see a particular television program, they had no indication of where he might be found prior to that time, except a general indication as to the area of the city which appellant frequented. Consequently initial efforts at apprehension were limited to patrolling the streets in this area, and maintaining a stakeout at Mrs. Burwell's apartment. At around 7:00 p. m., Sunday, March 19, appellant was seen entering Mrs. Burwell's apartment, and immediately thereafter the police went to the apartment and made the arrest.

Appellant was arrested within five feet of the front door after a peaceful entry by the police. He was immediately taken out onto the stairwell landing where he was searched and the knife recovered. No search of Mrs. Burwell's apartment was undertaken. The apartment was the home of Mrs. Burwell and appellant's mother, but appellant did not reside there.

The District Court's view that the warrantless arrest of appellant was valid was based first on the finding that the entry of the police into the apartment was consented, and second on the conclusion that because the entry was consented and because appellant was immediately led out of the apartment without a search of the premises, the actual seizure of appellant stands on the same footing as an arrest in a public place for which a warrant is not required. Rouse v. United States, 123 U.S.App.D.C. 348, 359 F.2d 1014 (1966); Ford & Kimble v. United States, 122 U.S.App.D.C. 259, 352 F.2d 927 (1965).

We think the District Court's findings and conclusions are in conformity with the evidence. The District Court found that Mrs. Burwell, who owned the apartment, and appellant's mother, who occupied a room there, had cooperated with the police and voluntarily given information incriminating appellant. These statements which had been reduced to writing and signed, constituted strong probable cause for the police to arrest appellant. More than that, the police had strong cause to arrest the suspect at a particular place for they were also told specifically that appellant was in the habit of visiting Mrs. Burwell's apartment on Sunday evenings to watch a certain television program. There is nothing in the record which would negative the applicability in this case of the natural inference that one who initiates giving information to the police, both of the identity of a particular suspect and of the fact that the suspect can be found in his home at a particular time, thereby manifests his consent to an entry by the police at that time for the purpose of arresting that suspect.

The entry by the police into the Burwell apartment, solely to arrest and without any search, was not one which trammeled on the general protection provided by the Fourth Amendment for the security of the home against warrantless entry by the agents of the Government. On the contrary, Mrs. Burwell's awareness that the police would probably arrive at her home at the date and time she had focused is really a greater protection than that which she...

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