Harrison v. United States, 20280

• Decision Date: 18 May 1967
• Docket Number: No. 20280,20281.,20280
• Citation: 128 US App. DC 245,387 F.2d 203
• Parties: Eddie M. HARRISON, Appellant, v. UNITED STATES of America, Appellee. Orson G. WHITE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

128 US App. DC 245, 387 F.2d 203 (1967)

Eddie M. HARRISON, Appellant, v. UNITED STATES of America, Appellee.

Orson G. WHITE, Appellant, v. UNITED STATES of America, Appellee.

Nos. 20280, 20281.

United States Court of Appeals District of Columbia Circuit.

Argued November 16, 1966.

Decided May 18, 1967.

Rehearing Denied August 1, 1967.

COPYRIGHT MATERIAL OMITTED

Mr. Alfred V. J. Prather, Washington, D. C. (appointed by this court), for appellant in No. 20,280.

Mr. George J. Thomas, Washington, D. C. (appointed by this court), for appellant in No. 20,281.

Mr. Robert Kenly Webster, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Before BASTIAN, Senior Circuit Judge, and McGOWAN and ROBINSON, Circuit Judges.

Rehearing Denied En Banc August 1, 1967.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Appellants, Eddie M. Harrison and Orson G. White, and a co-defendant, Joseph R. Sampson, were convicted in October, 1960, of the felony-murder of George H. "Cider" Brown.¹ Death sentences, then mandatory, were imposed.² The case submitted by the Government, and accepted by the jury, was that Brown was killed by a blast from Harrison's shotgun in the course of an attempt to perpetrate a robbery espoused by the trio. While an appeal was pending, it came to light that one Daniel Jackson Oliver Wendel Holmes Morgan, a layman impersonating a member of the District of Columbia bar,³ had represented White and Sampson throughout the trial and Harrison during its post-verdict stages,⁴ a discovery that led to a new trial.⁵ In April, 1963, appellants and Sampson were again found guilty, the jury recommending life imprisonment for each, to which they were sentenced.⁶ These convictions were reversed because statements they had made to police officers had been improperly admitted.⁷

The third trial, in May, 1966, from which this appeal emanated, was atypical. Since some of the witnesses participating earlier had either died or could not be located, the Government's presentation consisted largely in a reading into evidence of testimony given at the second trial by appellants and the absent witnesses. At the close of its case in chief, the trial judge directed a judgment of acquittal in Sampson's favor but denied similar motions by appellants. Offering no evidence in defense, appellants once more were convicted and, on recommendation of the jury, were sentenced to life imprisonment.

As grounds for reversal appellants urge (a) that they were denied a speedy trial, (b) that the admission of their second-trial testimony was improper, and (c) that there was insufficient evidence that a robbery was in progress when the homicide occurred to convict them of felony-murder. We discuss but reject these contentions, and affirm as to Harrison. The record, however, reveals serious error in the admission at this trial of portions of the testimony White gave at the first trial, and this requires reversal of his conviction.

I

The contention that appellants' Sixth Amendment right to a speedy trial⁸ has not been respected is predicated broadly upon the six-year lapse between the homicide and the third trial, but for this purpose we cannot treat litigation spans in a vacuum. "There is no touchstone of time which sets a fixed maximum period that automatically requires application of the Sixth Amendment and dismissal of the indictment."⁹ Rather, "the right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice."¹⁰ So in determining whether the delay complained of assumes constitutional proportions, we examine the circumstances¹¹ closely to ascertain whether it was "arbitrary, purposeful, oppressive or vexatious."¹²

On the second appeal, appellants pressed a similar claim with respect to the time the case had consumed to that point. We unanimously rejected it for the reasons then expressed and repeated below.¹³ Viewing additionally the period since ensuing, we find no reason to now conclude differently.

The present argument focuses upon the interval of approximately two years during which the second appeal was pending. Here undoubtedly is "a spot where the ideal crashes head-on with the practical,"¹⁴ and appellants' position reflects but scant recognition of the exigencies of appellate review in abnormal cases. That appeal was first argued in December, 1963, before a panel of the court. One of the several difficult questions involved, we decided, was so important as to require determination by the entire court. In June, 1965, the cases were reargued and in December of that year the convictions were reversed. The combinational effect of the panel and en banc decisions was to bar from subsequent use all incriminating extrajudicial statements made by appellants.¹⁵

The time necessarily consumed in unraveling complex issues whose ultimate resolution vindicates the rights of the accused can hardly be said to constitute purposeful or oppressive delay. We are accustomed to careful study of the questions presented to us, particularly where human life or liberty is at stake, and surely this case has tolerated no deviation. "The essential ingredient is orderly expedition and not mere speed";¹⁶ indeed, "a requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself."¹⁷ One has but to examine the comprehensive opinions the second appeal brought forth to appreciate the court's task and foresee the risk that unwarranted haste might have worked to appellants' disadvantage. And there is no hint that any subsequent phase of this case radiates any constitutional implication.

Nor do we deem it likely or reasonably possible that appellants could have been prejudiced by the delay.¹⁸ The only concrete suggestion in that direction is that the absence of some of the Government's witnesses and the resulting need to read their prior testimony to the jury precluded additional cross-examination. But appellants had, and utilized, the opportunity to question those witnesses fully during the second trial, and at the third trial they were free to present to the jury the prior cross-examinations but elected not to do so. We are unable to identify any harm to appellants consequent upon the passage of time.

II

At the second trial, after the Government had introduced the post-arrest statements later outlawed on the second appeal,¹⁹ appellants themselves took the witness stand to relate events calculated to establish their innocence. The Government, as part of its case in chief at the third trial, introduced portions of the testimony appellants gave at the second trial. To this appellants register objection, asserting that they testified at the second trial only because the statements had been received in evidence thereat.

The Government's submissions from appellants' second-trial versions did not violate their privilege to remain silent at the third.²⁰ Nor do the rules authorizing introduction of prior-trial testimony feature an exemption of that given by an accused.²¹ And while wholesale transscriptive renditions are decidedly less desirable than live evidentiary presentations, we cannot chide the practice where the testimony of witnesses no longer available is indispensable to proof of elements of the Government's case and is confined to that purpose. We are thus brought to appellants' contention that their testimony was involuntary because it was incited by the admission of the subsequently banned post-arrest statements, and on that basis was insulated against prosecutive service at the third trial.

Our federal system bestows upon an accused the choice of testifying or not, and permits what he says from the witness stand to be used against him if not elicited coercively. The record contains no suggestion that the use of the statements at the second trial was a maneuver to wring evidence from appellants; from aught that appears, the Government's sole objective was to supply missing elements of its case. Here, unlike situations where duress of some sort has been found, the Government exerted no pressure,²² offered no inducement²³ and imposed no improper condition upon appellants' right to muteness.²⁴ There was uninhibited access to counsel,²⁵ and, so far as we can perceive, complete awareness of legal rights.²⁶ We have been referred to no case, and our own intensive research has located none, holding that the strength of the Government's case is itself a vitiating form of testimonial compulsion.

We may profitably resort to an analogy that to us is quite persuasive. If appellants, with their counsel present, and thus presumably cognizant of their prerogatives, had voluntarily spoken extra-judicially, their utterances would have been admissable on the Government's proffer. This would be so, we think it clear, even if the remarks had attempted exoneration in the face of strong or even overwhelming indicia of guilt. We are unable to dissent from these results when, with the same predicates in the case before us, the statements were made at a judicial trial, where appellants were surrounded by the full panoply of legal protections. Their second-trial accounts of the fatal episode lost none of their qualities of admissibility merely because they were rendered in open court or were induced by an evaluation of the capabilities of the Government's proof to convict.

Nor do we consider the re-read portion of appellants' testimony to be proscribed by the familiar "fruit of the poisonous tree" rationale. We may assume, as appellants assert, that had their post-arrest declarations not gotten into evidence at the second trial, they would not have taken the witness stand. The vital inquiry, however, for ascertaining productivity as between the improper admission of the...