District of Columbia v. McConnell, 81-1443.

• Decision Date: 18 July 1983
• Docket Number: No. 81-1443.,81-1443.
• Citation: 464 A.2d 126
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Gregory R. McCONNELL, Appellee.
• Court: D.C. Court of Appeals

464 A.2d 126

DISTRICT OF COLUMBIA, Appellant, v. Gregory R. McCONNELL, Appellee.

No. 81-1443.

District of Columbia Court of Appeals.

Argued August 30, 1982.

Reargued October 29, 1982.

Decided July 18, 1983.

Richard B. Nettler, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the briefs, for appellant.

Arthur M. Reynolds, Jr., Washington, D.C., for appellee.

Elizabeth Symonds, Washington, D.C., with whom Arthur B. Spitzer, Washington, D.C., was on the brief, for amicus curiae, American Civil Liberties Union Fund of the Nat. Capital Area.

Before NEBEKER and BELSON, Associate Judges, and YEAGLEY, Associate Judge, Retired.

YEAGLEY, Associate Judge, Retired:

An information filed on July 29, 1981, charged appellee with, inter alia, operating a motor vehicle while under the influence of intoxicating liquor. D.C.Code § 40-716(b) (1981).¹ The government appeals from the trial court's order denying its pretrial motion to introduce evidence of appellee's refusal to submit to a breathalyzer test following his arrest.² The trial court construed the pertinent statutory scheme as affording a defendant a right of refusal and quoted Stuart v. District of Columbia, 157 A.2d 294, 296 (D.C.Mun.App. 1960) to the effect that "it is not reasonable to interpret an assertion of right as constituting an admission of guilt." We reverse. As discussed in greater detail, infra, we hold that in view of Congress' amendment of the applicable statute in 1972 — the effect of which significantly withdrew the right of refusal formerly provided — Stuart is no longer controlling and evidence of refusal is admissible.

The threshold inquiry is whether the trial court's decision is appealable. Government appeals in criminal cases, long disfavored, are possible only pursuant to express statutory authority. See Arizona v. Manypenny, 451 U.S. 232, 245, 101 S.Ct. 1657, 1666, 68 L.Ed.2d 58 (1981); United States v. Martin Linen Supply Co., 430 U.S. 564, 568, 97 S.Ct. 1349, 1352-1353, 51 L.Ed.2d 642 (1977); Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967). The government relies on D.C. Code § 23-104(a)(1) (1981), which provides:

The United States or the District of Columbia may appeal an order, entered before the trial of a person charged with a criminal offense, which . . . suppresses evidence, or otherwise denies the prosecutor the use of evidence at trial, if the United States Attorney or the Corporation Counsel conducting the prosecution for such violation certifies to the judge who granted such motion that the appeal is not taken for purpose of delay and the evidence is a substantial proof of the charge pending against the defendant.

While we have considered the applicability of § 23-104 in various contexts, see United States v. Jackson, 441 A.2d 937 (D.C.App. 1982); District of Columbia v. Onley, 399 A.2d 84 (D.C.App. 1979); United States v. Shields, 366 A.2d 454 (D.C.App. 1976); United States v. Anderson, 366 A.2d 1098 (D.C. App. 1976), we have thus far left open the question of its scope. United States v. Shields, supra, 366 A.2d at 456. We hold here that the government may appeal any pretrial evidentiary ruling excluding or suppressing evidence, provided that the terms of § 23-104(a)(1) are met, i.e., the government must certify that the evidence constitutes "substantial proof of the charge pending against the defendant" and the appeal must not be taken "for purpose of delay."

Guidance in construing the parameters of D.C.Code § 23-104(a)(1) (1981) obtains from the parallel federal provision, 18 U.S.C. § 3731 (1976), which provides that "appeal by the United States shall lie . . . from a decision or order of a district courts [sic] suppressing or excluding evidence . . . ." Prior to 1970, both the federal and the District of Columbia statutes permitted government appeals only from a trial court's decision granting a defendant's motion to "suppress" evidence. Compare D.C. Code § 23-105(b) (1969 Supp. II) with 18 U.S.C. § 3731 (1965-69 Supp. V); United States v. Shields, supra, 366 A.2d at 455; see generally United States v. Greely, 134 U.S.App.D.C. 196, 413 F.2d 1103 (1969); Note, Government Appeal in Criminal Prosecutions: The 1970 Amendment to 18 U.S.C. § 3731, 12 AM.CRIM.L.REV. 539, 551-52 (1975) [hereinafter cited as Government Appeal]. The term "suppress" has a "rather definite and limited meaning," United States v. Barletta, 644 F.2d 50, 54 (1st Cir. 1981), encompassing "objections to evidence on the grounds that it was illegally obtained," e.g., as a result of an illegal search or from a confession unconstitutionally secured. Id. (quoting Advisory Committee Notes to FED.R.CRIM. P. 12(b)(3)). Indeed, the 1968 federal legislation, affording for the first time government appeals of pretrial orders, was enacted primarily to promote consistent development of the growing area of suppression law involving search and seizure and confession issues. See United States v. Robinson, 593 F.2d 573, 575 (4th Cir. 1979) (appellate guidance needed in "rapidly expanding area of constitutional litigation"); United States v. Greely, supra, 134 U.S.App.D.C. at 197, 413 F.2d at 1104 ("overriding purpose" of § 3731 is appeal of "difficult and unsettled area of suppression rulings"); Government Appeal, supra at 552 (purpose of provision intended to promote uniformity in law of search and seizure). Thus, in United States v. Greely, supra, 134 U.S.App.D.C. at 197, 413 F.2d at 1104, the circuit court, in refusing to permit a government appeal of a denial of a motion to reopen a suppression hearing on grounds of newly discovered evidence, narrowly confined the statute so as to apply solely to rulings on "motions to suppress." Adhering to the oft-recited axiom that government appeals in criminal cases are "`something unusual, exceptional, not favored'" (quoting Carroll v. United States, 354 U.S. 394, 400, 77 S.Ct. 1332, 1336, 1 L.Ed.2d 1442 (1957)), the court held the order nonappealable because it did not "fall within the literal language of the section." United States v. Greely, supra, 134 U.S.App.D.C. at 197, 413 F.2d at 1104.

In response to Greely, Congress amended § 3731 in 1971 to provide for appeals of pretrial decisions not only suppressing but also "excluding" evidence. See S.Rep.No. 1296, 91st Cong., 2d Sess. 111 (1970) (amendment necessary to obviate "restrictive judicial interpretation" of statute). Also added to the section was a paragraph stating that its provisions "shall be liberally construed to effectuate its purposes." See Government Appeal, supra at 564. At the same time, Congress amended the District of Columbia statute in parallel terms. The House Report, H.R.Rep. No. 907, 91st Cong., 2d Sess. 111 (1970) of the Committee on the District of Columbia explained the change as follows:

Section 23-104(a)(1) . . . relat[es] to the prosecution's rights to appeal pretrial ruling[s]. Such a provision was also enacted for the federal courts . . . (18 U.S.C. § 3731). The only change is the addition of the clause permitting appeal from a pretrial order which "denies the prosecutor the use of evidence at trial," a clause necessary to overcome the excessively narrow interpretation accorded the existing statute in United States v. Greely, 134 U.S.App.D.C. 196, 413 F.2d 1103 (1969) (denial of motion to reopen suppression hearing).

The question is whether these amendments were designed solely to overrule Greely and therefore apply only in the context of the exclusionary rule or instead were intended to broaden generally the grounds of appealable pretrial decisions. United States v. Shields, supra, 366 A.2d at 456; United States v. Barletta, supra, 644 F.2d at 56.

In United States v. Barletta, supra, 644 F.2d at 55-56, the First Circuit addressed this issue and, for reasons equally applicable here, decided in favor of the broader interpretation. First, the legislative history of § 3731 indicates that the phrase "order . . . suppressing or excluding evidence" is to be "read broadly." S.Rep. No. 1296, 91st Cong., 2d Sess. 18, 37 (1970), H.R.Conf.Rep. No. 1768, 91st Cong., 2d Sess. 21 (1970). Similarly, the legislative history of D.C. Code § 23-104(a)(1) (1981) provides for liberal construction of the phrase "or otherwise denies the prosecutor the use of evidence at trial." See H.R.Rep. No. 907, supra. According to testimony presented during hearings on the bill which amended § 23-104(a)(1), the amendment "grants the prosecution the right to appeal any pretrial exclusion ruling whether based on alleged constitutional violations or other ground[s]." (emphasis supplied.) Hearings on H.R. 13689 & H.R. 12854 Before Subcomm. No. 1 of the Comm. of the District of Columbia, 91st Cong., 1st Sess. 90 (1970); see United States v. Jackson, supra, 441 A.2d at 939; United States v. Jones, 423 A.2d 193, 195 (D.C.App. 1980).

The second reason mandating liberal construction of the 1970 amendments is the now well-established body of interpretative caselaw so providing, including a decision of the Supreme Court. In United States v. Helstoski, 442 U.S. 477, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979), the Court considered an appeal from an order denying the government the right to introduce evidence of the defendant's performance of past legislative acts as a member of Congress. The Court, albeit without discussion, permitted the appeal because "[t]here was an order . . . excluding evidence." Id. at 487 n. 6, 99 S.Ct. at 2439. Other federal courts have also allowed appeals from pretrial evidentiary decisions involving no exclusionary-rule issues. See United States v. Margiotta, 662 F.2d 131, 141 (2d Cir. 1981) (appeal from trial court's decision that evidentiary rulings would remain unchanged upon retrial); United States v. Horwitz, 622 F.2d 1101, 1104 (2d Cir. 1980) (appeal from order requiring government either to grant immunity or have...