Cooper v. United States

• Decision Date: 14 January 1977
• Docket Number: No. 7591.,7591.
• Citation: 368 A.2d 554
• Parties: Donald A. COOPER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

368 A.2d 554

Donald A. COOPER, Appellant, v. UNITED STATES, Appellee.

No. 7591.

District of Columbia Court of Appeals.

Argued April 9, 1975.

Decided January 14, 1977.

W. Gary Kohlman, Public Defender Service, Washington, D. C., for appellant. Carrie L. Fair, Public Defender Service, Washington, D. C., also entered an appearance for appellant.

Jeffrey T. Demerath, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Albert H. Turkus and Jonathan B. Marks, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before GALLAGHER and NEBEKER, Associate Judges, and PAIR, Associate Judge, Retired.

GALLAGHER, Associate Judge:

Appellant was charged in five counts with first-degree premeditated murder (D. C.Code 1973, § 22-2401), first-degree felony murder¹ (D.C.Code 1973, § 22-2401), first-degree burglary while armed (D.C. Code 1973, §§ 22-1801(a), -3202), first-degree burglary (D.C.Code 1973, § 22-1801(a)), and grand larceny (D.C.Code 1973, § 22-2201).

The trial court granted a defense motion for a bifurcated trial on the issue of insanity if a trial on this issue became necessary. After an examination at Saint Elizabeths Hospital, appellant was certified competent to stand trial.

After a hearing, the court suppressed a written statement given by appellant to the police the evening of his arrest. It denied a motion to suppress certain tangible evidence, and ruled admissible an oral statement given by appellant shortly after his arrest.

At the end of the government's case, the court granted motions for judgment of acquittal on the first-degree premeditated murder count and the grand larceny count, but denied a like motion directed to the count of felony murder. The jury returned guilty verdicts of first-degree murder (felony murder), and petit larceny.

At the conclusion of all the evidence in the second phase of the trial, the court directed a verdict in favor of the government on the insanity issue.

Several substantial issues are presented. Appellant contends the trial court erred in (a) denying the motion to suppress physical evidence, (b) not suppressing appellant's oral statement, (c) denying the motion for judgment of acquittal of the felony murder count and erroneously instructing the jury on the factors for determination on "whether a small pen knife constitutes a dangerous weapon," and (d) directing a verdict in favor of the government on the question of insanity.²

Appellant was observed on the street one afternoon by an officer while carrying two portable television sets in an area which had been victimized by daytime burglaries and housebreakings. When questioned by officers on how he had obtained the sets appellant, during a brief period of time, gave two materially different stories. Another officer arriving on the scene recognized appellant as the person he had seen shortly before coming out of a nearby house. Appellant had looked up and down the street and then proceeded on his way. The officers decided to go to that house to investigate. It was considered advisable to transport appellant with them so that he would be available for arrest if it were discovered that the house had been burglarized; and meanwhile the sets were impounded by the officers.

Upon arrival at the house it was soon discovered that the resident was dead, and it later developed she had been murdered by strangulation. Appellant was immediately arrested for the homicide and burglary.

Appellant argues that physical evidence, including the two television sets, approximately thirty dollars in cash and a small penknife taken from him should have been suppressed due to an illegal arrest without probable cause at the time it took place. It is contended that an arrest occurred prior to the discovery of the victim upon arrival at the house.

We do not agree there was an arrest either at the time appellant was detained on the street for questioning or when he was transported to the nearby house to await the outcome of the police investigation³ at that residence.

With respect to street detentions we might observe, preliminarily, that, whatever it might have been in previous decades, with the advent of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the law relating to street encounters underwent a change and became more realistic. Prior to Terry the decisions in this phase of the law usually revolved around whether there was an arrest and, if so, whether there was probable cause supporting it. Now, more frequently than not, the initial issue is whether there was a Terry-type detention and, if so, whether it was supported by an "articulable suspicion" as required by that decision.

When Terry was decided there were those who considered that its principal impact was to permit a protective frisk for weapons. Though it certainly had this thrust, it was soon apparent that its principal effect was that it gave Supreme Court sanction⁴ to a street detention based not upon probable cause to arrest, but upon a suspicion.⁵ Consequently, while cases vary, it is often now beside the point for a litigant to attack an initial street detention on the sole basis that there is no probable cause to arrest. In more cases than not, the real questions for the court now are whether the initial brief street detention by the police was based upon an "articulable suspicion" and, if so, whether the circumstances later had graduated into probable cause to arrest when the arrest occurred.

Applying those generalized comments to this case, it is apparent to us that the initial police detention of appellant under these circumstances was permissible. Doubtless there was an intrusion on liberty when the police questioned appellant concerning the two portable television sets he was carrying along the street in a neighborhood that had been beset by daytime burglaries. We do not find the initial questioning unreasonable.

When appellant gave two materially different versions to the police concerning the source of the sets the cause for suspicion increased substantially. When the newly arrived officer then stated he had just previously seen appellant emerge from a neighboring house, looking up and down the street, it was reasonable to proceed with appellant to that nearby residence to make inquiry. If in yester-year this might have been considered an arrest at that point, we would consider such a view no longer realistic as a consequence of Terry. See also Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Though basic constitutional protections must surely be preserved, at the same time courts should be "earthy" in assessing these street encounters.

As the Supreme Court said in Adams v. Williams, supra:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] recognizes that it may be the essence of good police work to adopt an intermediate response. [Citation omitted.] A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. [407 U.S. at 145-46, 92 S.Ct. at 1923.]

We see no constitutionally unreasonable police conduct leading to the arrest.⁶

Appellant next contends that the trial court erred in denying his motion for a judgment of acquittal of the felony murder charge because the sole evidence that he was armed with a dangerous weapon, a necessary element of the crime, was that a small penknife was found in his pocket.

The indictment charged:

[O]n or about February 6th, 1973, within the District of Columbia, Donald A. Cooper killed Leona Patterson in perpetrating and attempting to perpetrate the crime of housebreaking while armed with and using a dangerous weapon. . . .

On this issue, the government stated at trial:

Your honor, this small pen knife which was recovered from Mr. Cooper is not in and of itself a dangerous weapon. I have on occasion carried one myself. I think, however, in the circumstances of this case, the availability of that knife, as would be the availability of a pair of scissors, is sufficient to satisfy the requirements of the statute, and we would submit that the statutory requirements have been so satisfied with recovery of that knife on Mr. Cooper.⁷ [Emphasis added.]

This sums up the essence of this question. There was no evidence that the penknife was used⁸ or came out of appellant's pocket at any time during the crime period. While it is not necessary that an implement, e. g., a pistol, be utilized in the crime to fulfill the requirements of the statute, if an instrument is not per se a dangerous weapon—and the government so conceded at trial in respect to the small penknife—it would seem only reasonable that the government be required to show something additional to enable a finding that it met the "while armed with and using a dangerous weapon" allegation in the indictment.

While it may not necessarily be true, as appellant contends, that the government is required to meet the tests laid down for the various "dangerous weapon" statutes (D.C.Code 1973, §§ 22-502, -3204, -3214), in order to satisfy the charge in this case the fact is that the instrument here involved, a pocket penknife, must be established as a dangerous weapon to support the conviction of first-degree murder. Under the statutes that appellant would have us apply the government is frequently required to show surrounding circumstances or the actual use of the instrument in establishing that an instrument is a "dangerous weapon." E. g., Gilmore v. United States, D.C.App., 271 A.2d 783 (1970); Scott v. United States, D.C.App., 243 A.2d 54 (1968). The felony...