Hamilton v. United States

• Decision Date: 07 November 1978
• Docket Number: No. 12809.,No. 12714.,12714.,12809.
• Citation: 395 A.2d 24
• Parties: Maurice HAMILTON, Appellant, v. UNITED STATES, Appellee. Michael BARNES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

395 A.2d 24

Maurice HAMILTON, Appellant, v. UNITED STATES, Appellee.

Michael BARNES, Appellant, v. UNITED STATES, Appellee.

No. 12714.

No. 12809.

District of Columbia Court of Appeals.

Argued September 19, 1978.

Decided November 7, 1978.

Dennis M. O'Keefe, Chicago, Ill., appointed by the court, for appellant Hamilton.

Richard J. Toth, Washington, D. C., appointed by the court, was on the brief, for appellant Barnes.

Paula J. Page, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Michael W. Farrell and David W. Stanley, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY, GALLAGHER and HARRIS, Associate Judges.

KELLY, Associate Judge:

After convictions of carrying a pistol without a license (D.C.Code 1973, § 22-3204), appellants Maurice Hamilton and Michael Barnes appealed, citing as error the trial court's denial of their joint motions to dismiss the indictment for want of a speedy trial and for compulsory disclosure of the identity of the government's informant. In addition, appellant Barnes cites as error the denial of his motion to sever, and claims also that there was insufficient evidence produced at trial to support his conviction. We affirm.

On March 29, 1976, Metropolitan Police Department Officer Carl A. Occhipinti received an informant's tip to the effect that appellant Hamilton would be operating an automobile in the vicinity of 4th and M Streets, N.W., accompanied by another black man, and that a gun could be found in the car. Acting upon the information and relying on his familiarity with Hamilton's automobile, the officer stopped the car. Hamilton's young son was also in the car at the time. The officer instructed appellants to get out of the car, which proved to be a difficult task for Barnes as the passenger side door was inoperable. The officer then frisked appellants and searched the car. The search revealed the gun, which was wedged between the front seat and the passenger's door and was wrapped in a partially opaque plastic bag. Appellants were then placed under arrest.

At trial, the government presented Officer Occhipinti as its only witness. The officer testified that his informant was well known to him and had, in the past, always provided reliable information to him. The officer also stipulated that the gun was not in plain view. During cross-examination of the witness, the government objected to appellants' attempts to obtain information which could reveal the informant's identity, arguing that such information would endanger the life of the informant as well as his usefulness.¹

Appellant Hamilton produced only two witnesses at trial: his common-law wife and her sister. Both testified that they had seen appellant Barnes in possession of the gun before his arrest and that Barnes had told them (individually) that the gun was his. Both testified also that they did not alert Hamilton to the fact that Barnes had a gun and indicated that the circumstances which prevailed on the day of the arrest suggested that Hamilton had no knowledge of the gun. Appellant Barnes produced no witnesses and did not testify on his own behalf. He merely argued that there was no evidence to prove that the gun was his.

Appellants first argue that the identity of the informant should have been disclosed to them. They base this argument both on the Roviaro balancing test, infra, and the holding in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that the government must disclose to defendants any evidence which it holds that is material and favorable to the defendants. Because appellants proffered nothing, beyond mere speculation, to show that the government's informer could have provided evidence which was material and favorable to their defense, and because that showing is central to both the Roviaro and the Brady claim, both claims can be dismissed in a single discussion.²

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Supreme Court held that in order to determine whether the government must be forced to disclose the identity of an informant, the benefits to the defendant of such disclosure should be weighed against the strong public policy of protecting and promoting informants. In making this determination, a court should examine "the crime charged, the possible defenses, [and] the possible significance of the informer's testimony. . . ." Id. at 62, 77 S.Ct. at 629. The moving party must demonstrate that the informer is more than a mere informer, see Miller v. United States, 273 F.2d 279 (5th Cir. 1959); i. e., that he was a participant, an eyewitness, or that he could give direct testimony on the events at issue. United States v. Skeens, 145 U.S.App.D.C. 404, 408, 449 F.2d 1066, 1070 (1971).

The decision to compel disclosure rests within the sound discretion of the trial court, Roviaro v. United States, supra 353 U.S. at 61 n. 9, 77 S.Ct. 623, and the burden of proof is entirely on the defendant. United States v. Skeens, supra at 408, 449 F.2d at 1070. A disclosure request must not be based on mere speculation, id., or suspicion, United States v. Alverez, 472 F.2d 111, 113 (9th Cir.), cert. denied, 412 U.S. 921, 93 S.Ct. 2742, 37 L.Ed.2d 148 (1973); it must be demonstrated that the informer would have offered testimony helpful to the defense. The inquiry thus becomes, was there a reasonable basis to believe that the informer could offer evidence as to the actual ownership or possession of the gun in this case.

Appellants did not meet their burden of showing that disclosure was required. Given that they did not know the identity of the informer, at first blush it may seem difficult to imagine a means by which appellants could show that the informer would testify to material facts. Roviaro v. United States, supra, however, sheds some light on this problem. There, the appellant was charged with transporting for sale illegally obtained heroin. The informer was an intimate part of that transaction.³ The Court noted: "[T]his charge, when viewed in connection with the evidence introduced at the trial, is so closely related to [the informer] as to make his identity and testimony highly material." Id. 353 U.S. at 63, 77 S.Ct. at 629. Here, there were only two parties to the offense. It is uncontradicted that the gun was found in the car; thus, the only evidence that would benefit either appellant would be testimony that would place the gun exclusively in the hands of the other. The informer's testimony would have to dispel the inference that one appellant was not in constructive possession of the gun. Neither appellant, by his proffer, laid a plausible evidentiary foundation for such a conclusion. In short, the trial judge's refusal to compel disclosure was not an abuse of discretion.

Appellants contend second that their case should have been dismissed because of the government's failure to bring them to trial in a speedy and deliberate fashion. We have commented many times on the Supreme Court's announcement in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), of a four-pronged balancing test to determine whether such a delay caused undue harm to the defendant. E. g., United States v. Bolden, D.C.App., 381 A.2d 624 (1977); Branch v. United States, D.C.App., 372 A.2d 998 (1977). Consequently, we have examined with care the seventeen-month delay between arrest and trial in this case to be sure that the government has satisfied its heavy burden of justifying the delay. Id. Suffice it to say, that despite the seemingly inordinate length of time in disposing of a simple one-day trial, the delay was attributable to each party in fairly equal parts, and the government has successfully shown that any inferential prejudice to appellants resulting from the delay was minimal. A chronological recitation of each quantum of delay is, under the circumstances, unnecessary, and we conclude that it was not error to deny the motions to dismiss for want of a speedy trial.

Appellant Barnes cites two alleged errors in which appellant Hamilton does not join. He first argues that the trial court abused its discretion by denying his motion for severance. He does not argue that the cases were improperly joined under Super. Ct.Cr.R. 8(b).⁴

Super.Ct.Cr.R. 14 states that "[i]f it appears that a defendant . . . is prejudiced by a joinder . . . of defendants in an indictment . . . or by such joinder for trial together, the court may . . . grant a severance of defendants or provide whatever other relief justice requires." The trial court has "extremely wide latitude" in determining whether to sever a case, Clark v. United States, D.C.App., 367 A.2d 158, 160 (1976), and its findings will not be reversed unless they are clearly erroneous, e. g., Schaffer v. United States, 362 U.S. 511, 513, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960). The decision to sever should be made where defendant can show that "the defendants present conflicting and irreconcilable defenses and there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty. . . ." Rhone v. United States, 125 U.S.App.D.C. 47, 48, 365 F.2d 980, 981 (1966) (emphasis added).⁵ Mere testimonial conflicts, Baxter v....