Duddles v. United States, 13264.

• Decision Date: 27 February 1979
• Docket Number: No. 13264.,13264.
• Citation: 399 A.2d 59
• Parties: David William DUDDLES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

399 A.2d 59

David William DUDDLES, Appellant, v. UNITED STATES, Appellee.

No. 13264.

District of Columbia Court of Appeals.

Argued December 12, 1978.

Decided February 27, 1979.

Leroy Nesbitt, Washington, D. C., appointed by this court, for appellant.

E. Anne McKinsey, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.

Before YEAGLEY, MACK and FERREN, Associate Judges.

FERREN, Associate Judge:

Appellant contests his convictions for assault, D.C.Code 1973, § 22-504, and possession of a prohibited weapon, D.C.Code 1973, § 22-3214(b), asserting that (1) the motions judge erred in summarily denying, without prejudice, his pretrial motion to suppress evidence, and that (2) the trial judge erred in refusing to entertain appellant's motion to suppress during trial. Because appellant's pretrial motion contained only a bare allegation of a constitutional violation, without any factual basis, we conclude that the motions judge acted properly in denying the motion without a hearing. In addition, because appellant took no steps to file a new motion before trial, the trial court properly refused to hear appellant's suppression motion at trial. We accordingly affirm the convictions.

I.

At approximately 5:00 a. m. on September 27, 1977, appellant was arrested by a police officer answering a radio call about a man with a gun.¹ Later that day, the government filed a nine-count information against him.² Appellant filed a motion to suppress on October 3, 1977. The government moved for summary denial of that motion on October 20, stating that the motion lacked the statement of grounds required by Super.Ct.Cr.R. 47 and 47-1(b).³ After permitting appellant to argue why the court should hear his motion, the motions judge summarily denied it — without prejudice to the filing of a motion that would meet the requirements of the court's rules.⁴

On January 26, 1978, the court tried appellant's case without a jury. During direct examination of the government's first witness — appellant's arresting officer — defense counsel objected to the officer's testimony about statements that appellant had made after his arrest. Counsel then renewed appellant's pretrial motion to suppress. The court took the matter under advisement. On the following day, the court ruled that the motions judge's denial of the motion was the law of the case, and that the court therefore would not reconsider it. At the conclusion of trial, the court found appellant guilty of assault and possession of a prohibited weapon.⁵

II.

Appellant's pretrial motion to suppress was, as he admitted, a "form motion" that his attorney had been using for sixteen years. The motion merely alleged a constitutional violation in very general terms without providing a factual foundation for the allegations.⁶ Appellant claims that despite the generality of the pleading, the motions judge should have granted a full evidentiary hearing. More particularly, he argues that the requirement in Rules 47 and 47-1(b) that the moving party state the grounds in support of the motion should not be interpreted so strictly as to preclude a hearing when the defendant fails to demonstrate, in the motion papers themselves, a detailed factual basis for the motion.

Appellant offers two reasons. First, a defendant, as a practical matter, does not have time to develop a sufficient factual basis for a motion required by Rule 47-I(c) to be filed within 10 days of arraignment or entry of appearance of counsel, whichever is later (unless the court provides otherwise)⁷ Perfunctory pleading is therefore essential to preserve a defendant's rights, including the right to effective assistance of counsel. Second, it is unfair in any event to require a defendant to divulge a "substantial part" of his case in motion papers prior to a hearing. Instead, a defendant should be permitted to file a simple motion alleging categories of constitutional violations; this would trigger an automatic hearing at which the government puts on its case affirmatively justifying obtainment of statements and seizure of items from the defendant — followed by defense cross-examination and, if necessary, defense evidence.⁸

As to the first point, we agree that defense counsel cannot always be expected to have completed enough discovery within 10 days to provide a sufficient statement of grounds for a motion to suppress. But this is not to say that the defense is compromised by Rules 47 and 47-1. Counsel, during the 10 days, can file a motion for extension of time within which to file a motion to suppress; e. g., an extension until 10 days after completion of timely discovery. Alternatively, counsel can file a motion to suppress based on currently available information, requesting deferral of a hearing or ruling until completion of discovery and amendment of the motion with further particulars. If counsel has asserted valid reasons for such an extension or deferral, it would be an abuse of discretion for the trial court to compromise a defendant's rights by denying such a motion. Thus, the 10-day rule provides no basis for arguing that a defendant cannot make a sufficiently detailed, written motion to suppress in compliance with Rules 47 and 47-1.

By denying the "form" suppression motion without prejudice, the motions judge in the present case essentially preserved appellant's rights, giving counsel time — in effect a continuance — to prepare the requisite motion. Appellant's first argument therefore fails.

Appellant's second argument is premised on an asserted defense right to divulge nothing of its case until after the government has presented evidence affirmatively justifying its actions in obtaining statements or seizing property. This argument, however, overlooks the fact that, in the case of a claimed Fourth Amendment violation, the defendant has the burden of making a prima facie showing of illegality and demonstrating a causal connection between the illegality and the seized evidence. See Rakas v. Illinois, ___ U.S. ___, 99 S.Ct. 421, 423-24 n. 1, 58 L.Ed.2d 387 (1978); Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Crews v. United States, D.C.App., 389 A.2d 277, 289 (1978); United States v. Thompson, 409 F.2d 113, 116-17 (6th Cir. 1969).⁹ It follows that in order to justify a hearing, the defendant is obliged, in his definitive motion papers, to make factual allegations which, if established, would warrant relief (based on evidence discovered of the government and, if necessary, proffered from defendant's own view of the case). The federal courts have uniformly upheld this approach; allegations that are merely conclusional cannot suffice. United States v. Thornton, 147 U.S.App.D.C. 114, 124 n. 65, 454 F.2d 957, 967 n. 65 (1971); United States v. Culotta, 413 F.2d 1343, 1345 (2d Cir. 1969), cert. denied, 396 U.S. 1019, 90 S.Ct. 586, 24 L.Ed.2d 510 (1970); Cohen v. United States, 378 F.2d 751, 760-61 (9th Cir.), cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215 (1967); see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 2685, 57 L.Ed.2d 667 (1978); 3 Wright, Federal Practice and Procedure § 675 at 125-26 (1969).

This required procedure is not prejudicial to a defendant. Appellant acknowledges that the prosecution has a liberal policy of pretrial discovery. The rules in any event allow a defendant access to such evidence as his own statements, as well as documents and tangible objects which the government intends to use at trial or are otherwise material to the defendant's case. See Super.Ct.Cr.R. 12(c), 16. Such evidence, coupled with witness interviews, will often provide a defendant with sufficient information to make the factual allegations required by the rules, without divulging a substantial part of his own case.¹⁰ If, moreover, a defendant elects to take the stand at a pretrial suppression hearing, his testimony cannot later be used against him on the issue of guilt at trial. Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Anderson v. United States, D.C.App., 326 A.2d 807, 810 (1974), cert. denied, 420 U.S. 978, 95 S.Ct. 1405, 43 L.Ed.2d 659 (1975). Consequently, we perceive no unfairness, let alone prejudice, to a defendant from the orderly pretrial suppression procedure outlined above.¹¹

III.

Appellant maintains that even if the motions judge properly denied the pretrial suppression motion, the trial judge improperly refused to consider the motion when appellant renewed it at trial during the government's case-in-chief. More specifically, appellant argues that because the motions judge had denied the motion without prejudice, the trial judge erred in declining to hear the motion on the ground that its denial was the "law of the case."

This court has stated on several occasions that the decision on a pretrial motion to suppress becomes the law of the case. United States v. Allen, D.C.App., 337 A.2d 512 (1975); Wheeler v. United States, D.C.App., 300 A.2d 713, 715 (1973); United States v. Dockery, D.C.App., 294 A.2d 158, 163 (1972); Jenkins v. United States, D.C. App., 284 A.2d 460, 463-64 (1971). The trial judge may entertain a renewed motion to suppress only if "new grounds, including new facts, are advanced which the defendant could not reasonably have been aware of" at the time of the pretrial hearing. Jenkins, supra at 464; see Allen, supra at 513; Wheeler, supra at 715; Dockery, supra at 163. In all these cases, however, the motion to suppress had been decided on the merits, i. e., with prejudice. Although the motions judge in the present case can be said to have decided the merits of a cryptic motion, his doing so without prejudice leaves us uneasy about using a "law of the case" rationale here.

Nonetheless, both the District of Columbia Code and the Superior Court Rules of Criminal Procedure make clear that motions...