Fludd v. United States

• Citation: 336 A.2d 539
• Decision Date: 22 April 1975
• Docket Number: No. 6644.,6644.
• Parties: Allen L. FLUDD, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

Page 539

336 A.2d 539

Allen L. FLUDD, Appellant, v. UNITED STATES, Appellee.

No. 6644.

District of Columbia Court of Appeals.

Submitted September 18, 1973.

Decided April 22, 1975.

Roger A. Finzel, Washington, D. C., appointed by the court, amicus curiae, was on the brief for appellant.

Harold H. Titus, Jr., U. S. Atty., John A. Terry, John F. Finnegan, Jr. and Douglass J. McCollum, Asst. U. S. Attys., were on the brief for appellee.

Before KELLY, FICKLING and KERN, Associate Judges.

KELLY, Associate Judge:

Appellant was convicted by a jury of Burglary II (D.C. Code 1973, § 22-1801(b)) and petit larceny (D.C. Code 1973, § 22-2202). On appeal, through an amicus, he challenges the validity of the several identifications made of him by the complainant; the court's use of the word "defendant" rather than "person" in one portion of an identification instruction, and the court's refusal to sentence him under the Narcotic Addict Rehabilitation Act, 18 U.S.C. § 4251 et seq. The same claims of error, and more, are urged by appellant in a pro se brief on appeal. Since one point raised by appellant appeared to have potential merit; viz., the failure of the trial judge to advise him of his constitutional right to be present at the hearing of his motion to suppress, resolution of this appeal was deferred pending our decision in Poteat v. United States, D.C.App., 330 A. 2d 229 (1974). We now affirm.

The prosecution evidence was that appellant and another man were seen leaving a building of the Washington Technical Institute in this city carrying, respectively, a typewriter partially hidden under a coat and a trash can. The men placed the items they were carrying in a green sports car. Appellant approached the complainant, who was outside the building cleaning sleet off his automobile, and asked him if he had seen Lt. Perry, a member of the Institute's security force. After a brief conversation appellant returned to the green car and left. The complainant, being suspicious, made a note of the license number of the car as it drove away. The tag number was given to the police after it was discovered that a typewriter and an adding machine were missing from an office in the building. It was later ascertained that the car belonged to appellant's mother and that it was used that day by her son.

The defense was alibi and mistaken identity. It was therefore important to test the soundness of the complainant's photographic and lineup identifications of appellant by a motion to suppress. In the written motion which was filed, however, counsel waived appellant's presence at the hearing and the verbatim transcript of the proceedings reflects the following:

THE COURT: The Court is informed that Mr. Fludd is in route to the court. We will take the matter as soon as Mr. Fludd arrives.

[Counsel]: Your Honor, I will waive his presence at this proceeding.

THE COURT: He is at this time on his way to the Court counsel.

[Counsel]: Your Honor, I did not ask that he be brought up I waived his presence on the third page of my motion to suppress the identification testimony. He was brought up for other matters possibly I am not asking that he be brought up in this case. I am representing to the Court that this is the first time that I have learned of this information on the day of the original schedule for trial and that is why I came in today to have the motion. I know that it is untimely made.

THE COURT: The Court will hear you with respect to the motion for leave to file.

* * * * *

THE COURT: Are you ready to proceed?

[Counsel]: I am ready to proceed, Your Honor.

THE COURT: Send Mr. Fludd back to the cell block when he arrives.

[Counsel]: I do not know if he has arrived but if he has I have no need for him.

THE COURT: [Counsel.] When he arrives if you will just speak to him and explain to him why you do not need him.

It appears that appellant was told about the hearing shortly after it was over.¹ The motion to suppress was taken under advisement and was later denied on the grounds that the procedure followed in the photographic identification process was not suggestive just because appellant's picture was placed last in a book of approximately 50 others and that the lineup identification was not tainted by the police officer's statement to complainant that the person whose photograph he had selected had been the driver of the green car. At counsel's request the court also ruled that an incourt identification, if made, would have an independent source for a number of reasons, one being the fact that complainant had not had an opportunity to view appellant at the suppression hearing.

In arguing for the first time on appeal that it was error to hold the suppression hearing in his absence, appellant suggests that counsel's explanation for the written and oral waivers does not reflect sound reasoning. According to appellant, counsel's explanation was that he did not want a confrontation between appellant and the complainant before trial because of possible in-court identification problems...