Brown v. United States, No. 19890-19892.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtEDGERTON, Senior Circuit , and FAHY and BURGER, Circuit
Citation126 US App. DC 134,375 F.2d 310
PartiesRhozier T. BROWN, Jr., Appellant, v. UNITED STATES of America, Appellee. John D. IRBY, Appellant, v. UNITED STATES of America, Appellee. Robert L. JONES, Appellant, v. UNITED STATES of America, Appellee.
Decision Date30 December 1966
Docket NumberNo. 19890-19892.

126 US App. DC 134, 375 F.2d 310 (1966)

Rhozier T. BROWN, Jr., Appellant,
v.
UNITED STATES of America, Appellee.

John D. IRBY, Appellant,
v.
UNITED STATES of America, Appellee.

Robert L. JONES, Appellant,
v.
UNITED STATES of America, Appellee.

Nos. 19890-19892.

United States Court of Appeals District of Columbia Circuit.

Argued September 28, 1966.

Decided December 30, 1966.

Petition for Rehearing Denied February 13, 1967.

Certiorari Denied June 12, 1967.


375 F.2d 311
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375 F.2d 312
Mr. M. Michael Cramer, Washington, D. C., with whom Mr. H. Thomas Sisk, Jr., Washington, D. C., (both appointed by this court) was on the brief for appellant in No. 19890

Mrs. Dovey J. Roundtree, Washington, D. C., (appointed by this court) for appellant in No. 19891.

Mrs. Jean F. Dwyer, Washington, D. C., (appointed by this court) for appellant in No. 19892.

Mr. Theodore Wieseman, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Joel D. Blackwell, Asst. U. S. Attys., were on the brief, for appellee.

Before EDGERTON, Senior Circuit Judge, and FAHY and BURGER, Circuit Judges.

Petition for Rehearing En Banc Denied February 13, 1967.

Certiorari Denied June 12, 1967. See 87 S.Ct. 2133, 2134.

FAHY, Circuit Judge:

At a joint trial1 the three appellants were convicted of first degree murder in violation of those provisions of D.C.Code § 22-2401 which defined that crime to include the killing of another in perpetrating or attempting to perpetrate an offense punishable by imprisonment in the penitentiary. Appellants were convicted of killing Lonnie Page in perpetrating or attempting to perpetrate the offense of housebreaking, defined and its punishment by penitentiary imprisonment prescribed in D.C.Code § 22-1801. They were also convicted of housebreaking. The jury was not agreed on the punishment for the murder, and this required the court to sentence the appellants either to death or imprisonment for life, as provided in D.C.Code § 22-2404 (Supp. V, 1966). Sentences of life imprisonment were imposed. We affirm.

According to evidence at trial deceased had been engaged in buying and selling stolen property. On October 2, 1964, he was found dead on the kitchen floor of the house in which he lived. There were three bullet wounds in his body. The house appeared to have been ransacked. Television sets and other articles had been gathered near the front door, and milk had been spilled on the floor in the room where the body lay, the significance of which will appear.

Evidence of how the fatal shooting of Page occurred was supplied by the testimony at trial of Willie B. Whitmire, a participant in events surrounding the homicide. He testified that he and the three appellants, the latter armed, met in the early morning of October 2 at the house of appellant Irby. They drove to an alley near the home of Page and waited until Page left. They then broke into the house. Whitmire took up station at the back door as a lookout while appellants gathered television sets and radios and placed them near the door. In the midst of these activities Page was seen returning. Appellant Brown sent Whitmire to another room to prevent a little girl who was there from saying anything. She had already been tied and a pillowcase had been slipped over her head, which prevented her from seeing Whitmire. He put his hand over her mouth.

375 F.2d 313
As Page entered through the back door appellant Brown accosted him. Page threw a container of milk. Page was then shot several times. Whitmire ran out the front door to the car. Appellants Brown and Jones followed. Irby ran a different way

The occurrences thus described in the testimony of Whitmire as an eye witness were corroborated by physical details otherwise in evidence,2 and support the verdicts based on the conclusion that the shots about which Whitmire testified caused the wounds of which deceased died.

This testimony of Whitmire was objected to on the ground that the police learned of him and his possible participation in the homicide through statements made to the police by appellant Brown during his unlawful detention. It is contended accordingly that Whitmire's evidence was inadmissible under the "fruit of the poisonous tree" doctrine.3

The trial judge held a hearing, without the jury being present, to enable the judge to rule upon this objection to Whitmire's evidence. He overruled the objection. Aside from a question as to the standing of appellants Irby and Jones to press an objection to evidence said to be the fruit of the unlawful detention of someone other than themselves, see Wong Sun v. United States, 371 U.S. 471, 491-492, 83 S.Ct. 407, 9 L.Ed.2d 441, we are clear that Whitmire's live testimony from the witness stand at trial in November 1965 was admissible even if Whitmire's involvement were first learned from an inadmissible statement of Brown made in October 1964.

In Wong Sun v. United States, supra at 487-488, 83 S.Ct. at 417, the Supreme Court held that narcotics, obtained by officers as the result of a statement made by an accused consequent upon the unlawful invasion of his bedroom, were inadmissible at his trial. However, the Court stated that the case was not one,

in which the connection between the lawless conduct of the police and the discovery of the challenged evidence has "become so attenuated as to dissipate the taint." Nardone v. United States, 308 U.S. 338, 341 60 S.Ct. 266, 84 L.Ed. 307. We need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Maguire, Evidence of Guilt, 221 (1959). We think it clear that the narcotics were "come at by the exploitation of that illegality * * *."

In another aspect of the same case the Court held that when an illegal arrest was followed by release of the arrestee on his own recognizance, after his "arraignment," and he had voluntarily returned several days later to make a statement, "the connection between the arrest and the statement had `become so attenuated as to dissipate the taint.'" Id. at 491, 83 S.Ct. at 419.

375 F.2d 314

The "attenuated taint" doctrine, expressed in Nardone, has been applied by this court in Gregory v. United States, 97 U.S.App.D.C. 305, 231 F.2d 258, and, more importantly, in Smith v. United States and Bowden v. United States, 117 U.S.App.D.C. 1, 324 F.2d 879. In Smith and Bowden the testimony of an eyewitness to a murder and robbery was objected to on the ground that the witness' existence and identity were learned by the police from statements of the two defendants made during their illegal detention. The trial court, with the subsequent approval of this court, ruled that the statements of the defendants were inadmissible. However, relying in part upon Payne v. United States, 111 U.S.App.D. C. 94, 294 F.2d 723, this court pointed out that a living witness, unlike an illegally seized inanimate object,

is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give. The uniqueness of this human process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence.4

Whitmire's testimony was given some 13 months after the police learned from Brown of Whitmire's complicity. In the circumstances of the case this intervening period, with the impact upon Whitmire of innumerable incidents and his mental processes of thirteen months, attenuate any taint which might have existed originally. Cf. United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 91 L.Ed. 1654.5 Whitmire was an individual personality as distinguished from an inanimate and immutable object illegally come by. The testimony from his own lips, given more than a year after Brown's statement, cannot be said to be the unattenuated fruit of that statement rather than the fruit of his own reflection and volition. It is only reasonable to attribute it to the latter. Acquisition by the police of knowledge of his participation is one thing. His testimony is another and quite different thing. His examination at trial, together with all the circumstances appearing from the record, demonstrate that his testimony is not so closely related to Brown's statement as to be poisoned by its taint.6

375 F.2d 315

A careful reading of Whitmire's account from the witness stand, given on direct and on a cross-examination which did not undermine its independent character, discloses a witness who desired of his own volition to state what occurred insofar as within his knowledge and remembrance.

It is suggested that Whitmire's testimony resulted from pressure of the police or prosecuting officials. This was not pursued at trial on the theory his testimony was inadmissible as though it were an involuntary confession. The matter was pursued evidently to weaken or destroy Whitmire's credibility, and in the effort to take the case out of the ambit of Smith and Bowden. Although Whitmire denied any promise or inducement and none was proved there are the known circumstances that he had not been charged as were appellants, and had not been retained in custody. Appellants' suspicion that some understanding existed that Whitmire might not be prosecuted, or that he believed he would not be, is not enough to exclude his testimony. On the contrary, we conclude with confidence that he testified as one who of his own volition desired to state what he knew. If the case is unusual Whitmire's testimony is not for that reason inadmissible.

The appellants Irby and Jones, but not Brown, seek reversal because of the denial...

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82 practice notes
  • Tillman v. United States, No. 25381.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 10, 1969
    ...1966, 357 F.2d 486, 489; Bayless v. United States, 9 Cir., 1967, 381 F.2d 67, 72; Brown v. United States, 1967, 126 U.S.App.D.C. 134, 375 F.2d 310, 315. See 8 Moore, Federal Practice ¶ 14.02 1 (2d ed. 1968). Rule 14 states, in relevant part, "If it appears that a defendant or the government......
  • U.S. v. Ehrlichman, No. 74-1882
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 22, 1977
    ...(1974); United States v. Gambrill, 146 U.S.App.D.C. 72, 83, 449 F.2d 1148, 1159 (1971); Brown v. United States, 126 U.S.App.D.C. 134, 139, 375 F.2d 310, 315 (1966), cert. denied, 388 U.S. 915, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967). 84 United States v. Barber, 442 F.2d 517, 530 (3rd Cir.), c......
  • United States v. Roselli, No. 24220
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 30, 1970
    ...F. 2d 930 (5th Cir. 1969); Parker v. United States, 404 F.2d 1193, 1194 (9th Cir. 1968); Brown v. United States, 126 U.S. App.D.C. 134, 375 F.2d 310 (1966); Fernandez v. United States, 329 F.2d 899, 906 (9th Cir. 1964). We find no abuse of discretion Appellants' basic contention is that the......
  • U.S. v. Lee, No. 02-2389.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 8, 2004
    ...410 F.2d 653, 660 (4th Cir.1969). A defendant Page 652 can waive his rights by failing to object to the list, Brown v. United States, 375 F.2d 310, 317 (D.C.Cir.1966), or by failing to object at the commencement of the testimony of an undisclosed witness. Hickory v. United States, 151 U.S. ......
  • Request a trial to view additional results
82 cases
  • Tillman v. United States, No. 25381.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 10, 1969
    ...1966, 357 F.2d 486, 489; Bayless v. United States, 9 Cir., 1967, 381 F.2d 67, 72; Brown v. United States, 1967, 126 U.S.App.D.C. 134, 375 F.2d 310, 315. See 8 Moore, Federal Practice ¶ 14.02 1 (2d ed. 1968). Rule 14 states, in relevant part, "If it appears that a defendant or the government......
  • U.S. v. Ehrlichman, No. 74-1882
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 22, 1977
    ...(1974); United States v. Gambrill, 146 U.S.App.D.C. 72, 83, 449 F.2d 1148, 1159 (1971); Brown v. United States, 126 U.S.App.D.C. 134, 139, 375 F.2d 310, 315 (1966), cert. denied, 388 U.S. 915, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967). 84 United States v. Barber, 442 F.2d 517, 530 (3rd Cir.), c......
  • United States v. Roselli, No. 24220
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 30, 1970
    ...F. 2d 930 (5th Cir. 1969); Parker v. United States, 404 F.2d 1193, 1194 (9th Cir. 1968); Brown v. United States, 126 U.S. App.D.C. 134, 375 F.2d 310 (1966); Fernandez v. United States, 329 F.2d 899, 906 (9th Cir. 1964). We find no abuse of discretion Appellants' basic contention is that the......
  • U.S. v. Lee, No. 02-2389.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 8, 2004
    ...410 F.2d 653, 660 (4th Cir.1969). A defendant Page 652 can waive his rights by failing to object to the list, Brown v. United States, 375 F.2d 310, 317 (D.C.Cir.1966), or by failing to object at the commencement of the testimony of an undisclosed witness. Hickory v. United States, 151 U.S. ......
  • Request a trial to view additional results

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