Hawkins v. United States, 13077.

• Decision Date: 21 February 1980
• Docket Number: No. 13077.,13077.
• Citation: 411 A.2d 378
• Parties: Rocco HAWKINS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

411 A.2d 378

Rocco HAWKINS, Appellant, v. UNITED STATES, Appellee.

No. 13077.

District of Columbia Court of Appeals.

Submitted June 27, 1979.

Decided February 21, 1980.

Charles D. Craig, Jr., Washington, D.C., appointed by the court, was on brief for appellant.

Earl J. Silbert, U. S. Atty., when the brief was filed, Washington, D.C., and John A. Terry, Michael W. Farrell, Judith Hetherton and Michael Lehr, Asst. U. S. Attys., Washington, D.C., were on brief for appellee.

Before KELLY, KERN and HARRIS, Associate Judges.

HARRIS, Associate Judge:

Appellant was convicted of second-degree burglary, D.C. Code 1973, § 22-1801(b), and petit larceny, id., § 22-2202. He contends that the trial court committed reversible error by admitting into evidence certain police photographs which were taken of the stolen goods inside his apartment. We affirm.

Thomas Washington left his apartment one night. He accompanied his neighbor — appellant — and appellant's girlfriend (who apparently was ill) to a hospital. After the woman had been admitted to the hospital, appellant told Washington he was leaving, but said that he would return shortly to pick him up. Appellant never came back. Washington stayed at the hospital all night, returning home in the morning.

When he arrived there, he discovered that his apartment had been burglarized. He found in his apartment a package of cigarettes and an empty wine bottle which had not been there when he left for the hospital. Washington immediately telephoned his sister, Betty Ford, and explained what had happened.¹ She told him to contact the resident manager as well as the police, and said that she would come right over. When Ford arrived, the police and the resident manager and his wife (the Carters) were already in Washington's apartment. Washington described to the police what was missing. He also said that he believed appellant had been the burglar, because the cigarette package which had been left in the room was opened from the bottom in the manner regularly utilized by appellant. The resident manager and his wife further cast suspicion upon appellant by informing the police that a man fitting appellant's description had been seen putting a stereo into a car earlier that morning in front of the building.²

Based on this information, the police initiated steps to obtain a search warrant for appellant's apartment, which was immediately upstairs from Washington's. The resident manager told the police that he had a passkey and could let the officers into appellant's room. The police refused the offer, stating that they had to await a warrant. Further, the officers specifically instructed the Carters that they should not enter appellant's apartment.

That advice went unheeded. While the officers were processing the victim's apartment, Ford, Carter, and Washington went upstairs and entered appellant's room. There they discovered almost all of the items (except the stereo and a few other things) which had been taken from Washington. They then called downstairs to the officers, stating that they had found the stolen goods. The officers then went up to appellant's apartment.³ The police verified that Washington's property was there, photographed the room, and allowed Washington to reclaim his belongings.

Appellant's sole contention is that the officers violated his Fourth Amendment rights by entering and photographing his apartment after Ford, Carter, and Washington had discovered the stolen items there. Thus, appellant maintains, it was reversible error to admit into evidence the photographs taken of his room.

In support of this contention, appellant relies heavily on Moody v. United States, D.C.Mun.App., 163 A.2d 337 (1960). In Moody, this court held that when a police officer stood by passively while a private citizen searched another's apartment for stolen goods and then handed those goods over to the officer, the officer had participated in the search sufficiently to trigger the Fourth Amendment's protections. Even assuming arguendo that Moody would apply to this case — despite the fact that here the police not only did not sanction the citizens' search, but indeed counseled against it — we still could not conclude that the introduction of the photographs constituted reversible error.

There can be no question but that the private citizens' entry into appellant's apartment and their expected discovery of the stolen goods did not implicate the Fourth Amendment. Whether the officers' subsequent photography of the interior of the room contravened appellant's rights presents an interesting series of legal questions which, despite our concurring colleague's desire to do so, we see no need to treat. We are satisfied that, taken in conjunction with the other overwhelming and essentially uncontroverted evidence against appellant, the photographs had no prejudicial effect on appellant's case.

At trial, both Mrs. Ford and Mr. Washington testified in detail concerning what was taken from Washington's apartment — including descriptions of clothes, sheets, appliances, toiletries, food, and phonograph records — and which of those items they found later in appellant's apartment. Once that testimony had been elicited, the government showed them the pictures of appellant's apartment and asked if they recognized any of the items in the pictures, whereupon the witnesses said they did and then virtually reiterated their preceding testimony. In addition to this evidence, the government also established that appellant's fingerprints were found on the wine bottle which had been left in Washington's room; that appellant regularly opened his cigarette packages in the same unusual manner as had been the one found in the apartment; that a man fitting appellant's description was seen loading a stereo into a car outside Washington's apartment house shortly before the burglary was discovered; that appellant never returned to the rooming house after the burglary and sent a friend to retrieve his possessions; and, finally, that when confronted by the police after the burglary, appellant attempted to flee and gave them a false identification.

Juxtaposed against this, appellant — who was impeached by two prior convictions — offered only an inherently incredible story concerning his activities on the night of the burglary, and never denied or explained the presence of Washington's property in his apartment.

In view of the strong and abundant evidence implicating appellant, and the minor role of the photographs, we conclude that the admission of the pictures into evidence, if error at all, was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 21-24, 87 S.Ct. 824, 826-828, 17 L.Ed.2d 705 (1967); Brooks v. United States, D.C.App., 367 A.2d 1297, 1309-11 (1976).

Affirmed.

KERN, Associate Judge, concurring:

The record persuades me to reach two conclusions: (1) that the trial court committed constitutional error in refusing to suppress as evidence photographs the police took depicting various items in ...