Hearn v. District of Columbia

• Decision Date: 05 March 1962
• Docket Number: No. 2966.,No. 2965.,2965.,2966.
• Citation: 178 A.2d 434
• Parties: Charles A. HEARN, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

178 A.2d 434

Charles A. HEARN, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 2965.

No. 2966.

Municipal Court of Appeals for the District of Columbia.

Argued January 15, 1962.

Decided March 5, 1962.

Walter J. Bonner, Washington, D. C., with whom Michael F. X. Dolan, Washington, D. C., was on the brief, for appellant.

Ted D. Kuemmerling, Asst. Corp. Counsel, Washington, D. C., with whom Chester H. Gray, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.

Before HOOD, Chief Judge, QUINN, Associate Judge, and MYERS, Associate Judge of The Municipal Court for the District of Columbia, sitting by designation.

MYERS, Associate Judge.

These are appeals from convictions of two charges of indecent exposure in violation of Code 1961 § 22-1112, which prohibits making "any obscene or indecent exposure" of the person. Appellant was also charged with committing a "lewd, obscene or indecent act" arising out of the same situation. The court acquitted him of this last charge.

As no photographs were taken by either side, the description of the location where the offenses were committed was obtained from the testimony of the witnesses given in reference to a diagram placed on a blackboard, which, unfortunately, is not too satisfactory. It appears, however, that the place and circumstances of the occurrences pertinent to the charges here are as follows:

Appellant was occupying a room on the second floor at the rear of a hotel in this city. Its one window overlooked an alley area and a roof to the first floor of the hotel, the walls of which are about ten feet high and border an alley to the rear and one on the east side. The roof covering this portion of the hotel measures about 100 x 100 feet and is located about two feet below the sill of defendant's window. The perimeter of the roof is surmounted by a ten-foot Anchor fence. Several air-conditioning ducts, about one foot wide and three feet high, traverse it about one foot above its surface. The distance from his window on the second floor down to the alley, which it faced on the east, was about 100 feet or more. About 225 feet diagonally from his window was an alley entrance to a restaurant operated in what was once a stable. Appellant testified that, except for two small lights about 75 yards from his window, the alleys at night were unlighted.

The acts complained of were alleged to have occurred about midnight on July 5-6, 1961, and after midnight on July 6-7, 1961; and although the information charges two separate offenses on two different occasions, the conduct of appellant as described by the police officers was basically the same on both nights.

In summary, Officer Ernst testified that, while on routine patrol with his trained dog in the alley bounding the hotel on the east and to the rear, he observed a lighted window on the second floor of the hotel in which a naked white male was standing. He noted that as persons came out of the restaurant and walked in the direction of the main streets the man in the window would "bob up and down," appearing to drop to the floor of the room below the window ledge so that only his head and shoulders would remain in sight; that from time to time the man would lean out of the window with the upper part of his torso, showing his privates. There was no conversation between the officer and the man in the window, nor did the latter engage in any conversation with the passersby.

Mr. Tourat, the room clerk at the hotel, testified that when he went into the alley at the request of Officer Ernst on the first night, he saw a man looking out of a window on the second floor, identified as room 213; that this man was completely unclothed from the waist up to the top of his head; that he did not see his privates. His place of observation was not in the main part of the alley where one would normally walk, but in a small areaway off the alley bordering the hotel on the east where the trash cans for the hotel were kept and which was two or three steps above the alley. He saw no passersby.

The second night Detective Fochette joined Officer Ernst in the alley adjoining the hotel. He testified that, standing not in the alley but in the same little areaway off the alley used by Mr. Tourat, he observed a naked man at a second floor lighted window of the hotel. His description of the actions of the man in the window paralleled that given by Officer Ernst of his observations on the preceding night. There was no testimony that there were any signals or noises or calls from the man in the window. After a time Detective Fochette, in company with other officers, went to room 213 and, following some colloquy, entered, showed his badge, and placed appellant under arrest.

On his own behalf, appellant testified that, in connection with his work, he travels frequently and that he came to this city on July 5, 1961, to attend conferences in this area. He registered at the hotel in question and was assigned a room at the rear on the second floor. The room was small, approximately 8 or 9 feet wide by 16 feet long. The only ventilation was provided by a small window (kept closed when he was not in) through which he could see the area of the roof over the first floor of the hotel and the alleys. The weather was hot and humid. That there was a restaurant in either alley and that the alleys would be used by people going to and from the restaurant were unknown to appellant.

On the first night when he came back to the hotel, his room was stifling hot and oppressive. He raised the Venetian blind to its limit, adjusted the window to allow the maximum ventilation, and left his door open about three inches on the safety chain to create a stir of air. He removed his outer clothing and his underwear, which was soaking wet from perspiration, and began making preparation for the next day's conferences — recording notes, consulting a file folder on the dresser at the right-hand side of the window, and reading from a Washington paper which he had spread on the floor. In the course of these activities he made a number of movements about the room across the front of the opened window. He testified he did not see anyone outside nor did he hear any noises of activities. He denied he had deliberately exposed himself or had wanted to be seen in a nude condition.

The next day he spent in conferences. Upon his return to the room in the hotel after midnight, he found it even hotter than before. He again opened his window

and fixed the door on the night chain. As before, because he was hot and steamy, he removed all his clothing. Once when he went close to the window he thought he saw a man in the alley, and he immediately ducked down below the window ledge, staying out of view for several minutes as he didn't want to take the chance that someone was observing him. He looked over the ledge several times to verify whether the man had gone, and once leaned out to check to his extreme left. He saw no one, so proceeded to the other end of his room to get his pajamas and robe preparatory to going to the washroom outside his room. It was then that the officers knocked on his door, after which a colloquy followed because appellant did not know who was trying to gain admittance. The officers ultimately entered and arrested him.

Appellant conceded that when the officers entered he did perhaps say something about not meaning any harm, but he explained that the sudden appearance of the policemen at his door confused and upset him; that he had never before been arrested; that he had meant to convey that, with the shielding effect of the building, the...