Burleson v. United States, 6645.
| Decision Date | 29 June 1973 |
| Docket Number | No. 6645.,6645. |
| Citation | 306 A.2d 659 |
| Parties | Raymond C. BURLESON, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Herbert A. Fierst, Washington, D. C., appointed by this court, for appellant.
Michael W. Dolan, Atty., Dept. of Justice, with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and John S. Ransom, Asst. U. S. Attys., were on the brief, for appellee.
Before KERN and HARRIS, Associate Judges, and HOOD, Chief Judge, Retired.
This appeal centers largely around the admission in evidence of a pistol in a trial that resulted in appellant's conviction on a charge of assault with a dangerous weapon.1
The alleged assault occurred on the stairway and in the hall of a hotel at about one o'clock in the morning. Only two witnesses, the complainant and the appellant, testified as to the occurrence. Complainant testified that appellant came at him "swinging the gun around . . . and he kicked me down the stairs and pushed me around, poking me with the gun," that complainant called the police from a telephone in the hall and appellant then ran out the door and down the street, "got in his car and took off."
Appellant testified he went to the hotel to try to collect a bill from complainant,2 that complainant "grabbed at me" and "I kicked him down the steps," "dropped the bill on top of him while he was laying down," and told him, "I found you and you're going to pay it." Appellant then left the hotel. He denied having a gun with him at the time.
A police officer testified that sometime after midnight there was a radio broadcast to locate a particularly described automobile and it was found at about 1:20 a. m. some twelve or more blocks from the hotel where the alleged assault occurred. The car was parked and unoccupied. A stakeout was set up and at about 5:50 a. m. a car drove up and stopped behind the parked car. In the second car were two persons, appellant's brother who was driving and appellant sitting in the front passenger seat. Appellant got out and entered the parked car and both cars drove away but were soon stopped by the police.
Appellant was arrested and his car searched for weapons but none were found. The police then searched the brother's car and found a .38 caliber revolver under the front seat on the passenger's side. This gun was introduced into evidence under the following circumstances.
The police officer identified the revolver as a .38 caliber taken from the brother's car and identified six rounds of ammunition taken from the gun. The complainant testified that the gun with which appellant threatened him was a loaded black 38, and when shown the gun produced by the officer stated he was "reasonably sure" it was the same weapon but could not be positive because "all 38's look alike." Appellant testified the gun removed from his brother's car belonged to his brother-in-law.
At the beginning of the trial defense counsel had inquired if the government intended to offer the gun in evidence, and, if so, what connection it had with appellant. Government counsel replied that the gun would be identified by complainant "as similar" to the one used by appellant. Defense counsel then stated, and apparently government counsel agreed, that originally appellant's brother had been charged with possession of the gun but the gun had been suppressed as the product of an illegal search, and that defense counsel had not anticipated that the gun suppressed in the other case would be offered in evidence in this case. He asked leave to move in this case to suppress the gun.
The trial court questioned the necessity of introduction of the gun to prove the government's case because there was "a witness that said he saw the gun in his (appellant's) hand, and that is all that is necessary for the assault charge." When the government insisted it wished to put the gun in evidence, the court denied appellant's motion to suppress as "not having been properly made." When the gun was offered in evidence, objection was renewed but overruled, the court saying: "I want the record to show that it is because of the lack of timeliness of the motion."
Relying upon D.C.Code 1972 Supp., § 23-104(a)(2) and Criminal Rules 12(b) (3) and 41(g) of the trial court which require that a motion to suppress be made before trial "unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion," the government argues that the trial court correctly denied the motion as untimely. Appellant says that because the gun was taken from his brother's car and thereafter suppressed, he could not have reasonably anticipated that the gun would be used against him, and consequently his delay should have been excused. The government says that even if the motion had been permitted, it would have had to be denied because of lack of standing by appellant to question search of his brother's car at a time after appellant had voluntarily left the car.3
Aside from the question of the timeliness of the motion to suppress and the merits of the motion itself, we think there is a more fundamental question of the admissibility of the gun in evidence, assuming that it had been lawfully seized. The question is, in the words of counsel at trial, "what connection that gun" had with appellant ?
Real or visual evidence, like any other evidence, is admissible if it has some evidentiary value on some issue in the case, but it is not admissible if it is incapable of affording a reasonable inference as to a matter in dispute. The evidence must have some connection with the defendant or the crime with which he is charged, and should not be admitted if the connection is too remote or conjectural. What then was the connection between the gun and appellant?
The only connection was that the gun, similar to one complainant said appellant had used, was found, nearly 5 hours after the alleged assault had occurred and not...
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