Fletcher v. United States

• Decision Date: 30 April 1964
• Docket Number: No. 18223.,18223.
• Citation: 332 F.2d 724,118 US App. DC 137
• Parties: Robert J. FLETCHER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

118 US App. DC 137, 332 F.2d 724 (1964)

Robert J. FLETCHER, Appellant, v. UNITED STATES of America, Appellee.

No. 18223.

United States Court of Appeals District of Columbia Circuit.

Argued March 26, 1964.

Decided April 30, 1964.

Mr. Richard H. Nicolaides, Washington D. C. (appointed by this court), with whom Messrs. W. V. T. Justis and Richard A. Bartl, Washington, D. C., were on the brief, for appellant.

Mr. Gerald A. Messerman, Asst. U. S. Atty. with whom Mr. David C. Acheson, U. S. Atty., and Messrs. Frank Q. Nebeker and Paul Renne, Asst. U. S. Attys., were on the brief, for appellee. Messrs. John A. Terry and Victor W. Caputy, Asst. U. S. Attys., also entered appearances for appellee.

Before BAZELON, Chief Judge, PRETTYMAN, Senior Circuit Judge, and WASHINGTON, Circuit Judge.

PRETTYMAN, Senior Circuit Judge:

Appellant Fletcher was indicted, tried and convicted on a charge of robbery. The allegations were that he and two companions hailed a cab and directed the driver to take them to a certain address, and that upon arrival there they beat the driver almost into unconsciousness and robbed him. One of the alleged robbers was a juvenile named Anderson. He was apprehended and referred to the Juvenile Court, which sent him to the National Training School. He later testified before the grand jury, relating the affair of the robbery as the Government claimed it to be.

Upon the trial of Fletcher in the District Court, the prosecutor informed the court, before the jury was sworn, that Anderson had indicated that he would refuse to testify. The prosecutor took the position that Anderson could not assert the privilege against self-incrimination, since he had already been prosecuted for the offense. No ruling was made on the question, and after this announcement the case proceeded. The Government called the cab driver and then a friend of the appellant. The Government then called Anderson. He answered to his name and address and then, when asked if he knew Fletcher, stood mute. The court excused the jury. Anderson answered to his age (16), height (6 feet 3½ inches), and weight (206 pounds). Asked whether he had appeared in Juvenile Court in regard to the robbery, he stood mute. The court was told by counsel that he had been sent to the National Training School by the Juvenile authorities. The court then said that he would appoint an attorney for the witness and directed the assignment office to secure a lawyer. The court assigned one of the assistants from the Legal Aid Agency. The situation was explained to him, and Anderson's testimony before the grand jury was read to him. The cab driver was recalled to the stand and identified Anderson as one of his assailants. The proceeding was recessed until the next morning. At that time Anderson's testimony before the grand jury was read again to the court, and the cab driver again identified Anderson as one of his assailants. The court was advised, by Anderson's counsel, that Anderson's "position will be that he will not answer on the grounds that it may incriminate him." The court ruled that the jury had a right to hear the questions put to the witness. Anderson's attorney announced that he had no objection. Counsel for Fletcher objected upon the ground that the procedure created an atmosphere of definite prejudice to Fletcher. The jury was recalled, and Anderson resumed the witness stand. He stated his name, address and age. He was then asked, "Do you know the defendant in this case?", and he answered, "I refuse to answer on the grounds that it might incriminate me." He was then asked the following questions, to each of which he made the foregoing reply:

"Were you with the defendant on March 2, 1963?"

"Were you in his company at approximately 3:30 a. m. on March 2, 1963?"

"Did you and he in the company of another boy hail a cab at about 14th and Otis Street, Northwest?"

"Did you ask this cabdriver to take you to 19th and Ingleside Terrace, Northwest?"

"Did you at that point after the taxicab driver had stopped his cab, gotten out and gotten back in, did you — did you put — did you and the defendant proceed to put your arms around his throat?"

"On March 2, 1963, did you and the defendant drive this taxicab through Rock Creek Park?"

"Did you in the company of the defendant take a ring and money and identification card from the taxicab driver on March 2, 1963?"

He was then asked whether he had appeared before the grand jury. At that point the court stopped the questioning and the witness stepped down. The defense put Fletcher on the stand as its sole witness.

In the course of his instructions to the jury the trial judge said, referring to Anderson and his refusal to testify:

"He had the constitutional right to do that. He didn\'t have to testify, if he felt that any answer might implicate him in this crime that this defendant is being tried for.

"Now, you must not infer or conclude by reason of the fact that Anderson elected to rely on his constitutional right and refused to testify in answer to these questions that that probably means this defendant is guilty.

"You must draw no inferences along those lines, no presumptions, or anything like that.

"I thought I would mention that to you, that was his constitutional right and that does not mean by itself, of course, that this defendant is guilty."

The question before this court is whether the proceedings involving the witness were so unfair in their prejudice to the defendant on trial as to constitute reversible error. The question is not new. It has been considered by several Circuit Courts of Appeals and was before the Supreme Court last term in Namet v. United States.¹ The Court referred to several federal cases and said that none of them suggests that reversible error is invariably committed whenever a witness claims his privilege, but that rather those courts "have looked to the surrounding circumstances in each case,...