Curtis v. Rives

• Decision Date: 01 December 1941
• Docket Number: No. 7872.,7872.
• Citation: 75 US App. DC 66,123 F.2d 936
• Parties: CURTIS v. RIVES, Superintendent of Washington Asylum and Jail.
• Court: U.S. Court of Appeals — District of Columbia Circuit

75 US App. DC 66, 123 F.2d 936 (1941)

CURTIS v. RIVES, Superintendent of Washington Asylum and Jail.

No. 7872.

United States Court of Appeals for the District of Columbia.

Decided December 1, 1941.

J. Y. E. Allen, of Washington, D. C., for appellant.

Bernard Margolius, Asst. U. S. Atty., of Washington, D. C., (Edward M. Curran, U. S. Atty., and Charles B. Murray, Asst. U. S. Atty., both of Washington, D. C., on the brief), for appellee.

Before GRONER, Chief Justice, and STEPHENS and RUTLEDGE, Associate Justices.

STEPHENS, Associate Justice.

This is an appeal from a final order of the District Court of the United States for the District of Columbia discharging a writ of habeas corpus, dismissing the petition upon which the writ was issued, and remanding the appellant, James Curtis, petitioner below, to the custody of the appellee Thomas M. Rives.

By an indictment returned in the District of Columbia on March 18, 1937, the appellant was charged with the crime of robbery of a drug and liquor store at 87 Florida Avenue, N. W., in the District on January 6, 1937. On March 22, 1938, after a trial by jury, he was convicted. He moved for a new trial, which was granted, but, on January 18, 1939, after a second trial by jury, he was again found guilty as indicted. He again moved for a new trial, but this motion was on January 27, 1939, denied. Then, in propria persona — the appellant had previously been represented by counsel — he asked leave to file a further motion for a new trial. This leave was denied on April 19, 1939, and the appellant was on that date sentenced to imprisonment in the penitentiary for a term of from two years and two months to five years, and he is now serving this sentence. On May 19, 1939, he again in propria persona, filed in the District Court a document entitled "Specification of errors on appeal," together with another entitled "Notice of appeal in forma pauperis." These documents were filed in this court on May 25, 1939, under the caption "No. 7418, James Curtis, Appellant, v. United States of America." That appeal was dismissed on motion of the Government on June 19, 1939, because of the failure of the appellant to file the notice of appeal within the time required. On August 12, 1940, the appellant filed in the District Court his petition for a writ of habeas corpus. Founding the petition upon the Sixth Amendment to the Constitution,¹ he charged that in his second trial (hereafter referred to as the criminal trial) he was not confronted with the witnesses against him — naming Nathan Reiskin, proprietor of the store above mentioned, Vincent Curley, a clerk in the store, Blanche P. Greene and George Frederick Green, each of whom was named as a "witness" in the police report of the robbery — in that "the police deliberately withheld from testifying those persons personally present at the alleged robbery, named and recorded by the police . . . as `witnesses' because they well knew . . . that those persons could not and would not identify the petitioner as having participated in the alleged robbery . . . ." The appellant charged also denial of the right to have compulsory process for obtaining witnesses in his own behalf in that "although at his request subpoenas were issued to five witnesses who would have testified, if called, that petitioner was in another city at the time of the alleged robbery, none of such subpoenas was ever served . . . ." He further charged in the petition that the judge at the criminal trial erroneously refused to receive in evidence a "police incidental." The appellant sought relief under the doctrine of Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, that loss of jurisdiction to convict and sentence a defendant may be occasioned by denial of a constitutional right during a trial.

In return and answer to the writ the appellee denied that the police had at the criminal trial withheld the named witnesses from testifying and alleged, on the contrary, that the "police incidental" bearing the names of such witnesses was known to the appellant's counsel at the time of the trial, and that the "incidental" was itself in his possession at that time; the appellee averred that he was without knowledge as to the asserted erroneous refusal of the trial judge to receive the "police incidental" in evidence, and asserted that in any event the same was hearsay and not admissible; the appellee denied the charge that subpoenas issued to witnesses in the appellant's behalf were not served, and alleged to the contrary that all of the persons to whom subpoenas were issued on the appellant's behalf were interviewed personally by the appellant's counsel prior to the criminal trial.

Upon the issues thus joined in the habeas corpus proceeding the District Court held a hearing and at the close thereof entered the order dismissing the petition and discharging the writ. This appeal was then taken. There were no findings of fact or conclusions of law in the record. We remanded the case to the District Court with instructions to make findings of fact and conclusions of law, as required by Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C. A. following section 723c, and to transmit to this court a supplemental record containing the same. This was done. The findings of fact and conclusions of law are favorable to the appellee.

1. The charged denial of the right of confrontation: In respect of this right the substance of the guaranty of the Sixth Amendment is "to secure the accused in the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their testimony in his presence, and give to the accused an opportunity of cross-examination." Cf. Dowdell v. United States, 1911, 221 U.S. 325, 329-330, 31 S.Ct. 590, 55 L.Ed. 753; Mattox v. United States, 1895, 156 U.S. 237, 242, 15 S.Ct. 337, 39 L.Ed. 409. And see 5 Wigmore, Evidence (3d ed. 1940) § 1395. There is no contention by the appellant that he was not present at the criminal trial when the witnesses for the Government were called to testify; and it appears from the transcript of testimony in the case that he was present, and that his counsel did cross-examine the Government's witnesses. What the appellant really charges is not denial of the right of confrontation as such, but suppression or concealment of evidence or witnesses favorable to him. We may assume that this would be a violation of the due process clause of the Fifth Amendment. Cf. Mooney v. Holohan, 1935, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406.

This charge is refuted by the record: The transcript of the testimony in the proceedings below shows, without contradiction, that, as averred in the appellee's return and answer, the names of the witnesses above mentioned were not only known to the appellant's counsel at the time of the criminal trial, but also that the "police incidental" upon which these names were written was in the possession of such counsel at that time. Appellant's counsel at the time of the criminal trial, James J. Laughlin, so testified. Moreover, a transcript of the proceedings in the criminal trial was introduced in evidence at the hearing of the instant case, and the same has been made a part of the transcript herein. It shows that in response to a subpoena duces tecum issued at the instance of appellant's counsel and addressed to the Major and Superintendent of Police of the District the "police incidental" referred to was produced at the criminal trial. In addition, it was shown at the hearing of the instant case that so far as the witnesses Reiskin, Blanche P. Greene and George Frederick Green are concerned, none of them could have testified at the criminal trial to anything helpful to the defendant on the only substantial question in that trial, to wit, that of the identity of the robbers.

Jesse Abrams, a clerk in the store at the time of the robbery, testified at the habeas corpus hearing that Reiskin was not at the store during the period of the robbery or immediately afterwards. Obviously, therefore, he could have testified to nothing at the criminal trial in respect of the identity of the participants. Blanche P. Greene herself testified in the habeas corpus hearing. It was without dispute that there were two participants in the crime, a short man and a tall man, and that the appellant Curtis was tall, "6 feet and part of an inch" — according to his own statement. Blanche P. Greene said that when she walked into the drug store a short man put a gun in her side and told her to go to the back of the store; that she did not see another man, and did not see a tall man, and that she could not recognize either of the men who were there. George Frederick Green also testified at the habeas corpus hearing that although he was in the store when the robbery occurred, he could not get a good look at the robbers; that he would not know either of them if he saw them; that he did see the tall man of the two but that he "didn't get to see him good," and did not think he would recognize him if he saw him. With respect to Vincent Curley: Ernest Thompson, a police officer of the District, who shortly after the robbery, took Curley to a Baltimore line-up in which the appellant had been placed, testified on direct examination in the habeas corpus hearing that when Curley came out from viewing the line-up "he said he did not know whether it was the man or not." On cross-examination Thompson said: "Mr. Curley came out and told me, he said, `I don't know; I would not want to say one way or the other because I don't know; I would not trust myself.' He said, `I am not sure one way or the other.' He said, `I don't believe he is the man.'" It is true that there is in the record (attached to the appellant's petition for the writ of habeas corpus) a purported copy of an affidavit executed by Curley on June 19, 1940, in which he said, "I . . ....