Hill v. United States

• Decision Date: 07 November 1968
• Docket Number: No. 21162.,21162.
• Parties: George E. HILL, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

135 US App. DC 233, 418 F.2d 449 (1968)

George E. HILL, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 21162.

United States Court of Appeals District of Columbia Circuit.

Argued April 18, 1968.

Decided November 7, 1968.

Mrs. Jean F. Dwyer, Washington, D. C. (appointed by this court) for appellant.

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

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

LEVENTHAL, Circuit Judge:

Appellant was convicted on all counts of an indictment embracing two charges of robbery and one of housebreaking, all counts involving the Jumbo Food Stores, Inc., in the District of Columbia. Count 1 charged appellant with breaking and entering the store on September 23, 1966. Count 2 charged that on that date, by force and violence, he took from the person and from the immediate possession of one Arthur G. Tino (Jumbo's Manager), money and property belonging to Jumbo Food Stores, Inc., in the sum of $4,001.00. Count 3 charged that, on November 7, 1966, by force and violence appellant again stole and took from the person of Arthur G. Tino, Jumbo's property, cash in the sum of $1,280.00.

Appellant protests the denial of his motion for severance of Counts 1 and 2 from Count 3. He was found guilty on all counts and sentenced. We reject the claim that the denial of severance of counts requires a reversal. However, we think there was error in the limitation of appellant's presentation on a motion to suppress evidence, and remand for further proceedings.

1. SEVERANCE OF COUNTS

Appellant argues that the District Judge erred in denying the motions for severance. We think the District Court was within the scope of its discretion under Fed.R.Crim.P. Rule 8(a) and Rule 14. The initial joinder was within the ambit of Rule 8(a).¹ The offenses charged were of the same character; the robberies were close in time, and victimized the same store. However, a proper joinder in the first instance under Rule 8(a) does not settle matters. The trial judge is under a "continuing duty at all stages of the trial" to grant severance, on application by a defendant, showing prejudice as required by Rule 14.²

Sometimes a defendant can, at the outset, make a reasonable showing of the likelihood of prejudice if severance is denied. Sometimes the district judge may conclude, in the exercise of discretion, that prejudice is unlikely and that consolidated proceedings are in the interest of the administration of justice. A prosecutor or court scanting the problem of prejudice in the interest of expediting judicial administration runs the risk of retarding the process if prejudice, following in the wake of consolidation — even when due in part only to inadvertence of the prosecution or court — requires a reversal. See Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964).

In the case before us joinder at trial did not erupt in prejudice to defendant over and above that inherent in all joinder of offenses of common character. There were two distinct offenses; the testimony enabled the jury to distinguish between them, and they were responsibly separated from each other by counsel and by the trial judge, who reviewed meticulously and separately the evidence as to each offense.³

Tino's "identity" testimony singling out defendant as malefactor in both crimes might well have been admissible if charges had been pressed in two separate trials.⁴ We need not decide the point as such; the fact that the evidentiary question is as close as it is serves to allay any fear that defendant has been dealt with unjustly. We decline to hold that the District Court's denial of severance constitutes reversible prejudice.⁵

II. LIMITATION OF HEARING ON MOTION TO SUPPRESS

Appellant's main point protests the denial of his motion to suppress papers taken from his person, and the admission of testimony as to an identification made after his arrest.

Pertinent background includes the fact that appellant was arrested on November 8, 1966, the day after the second robbery, for making major repairs of his automobile in a public thoroughfare.⁶ The arrest was made by Detective Wesley who knew of the two grocery store robberies, and also knew that Mr. Tino had tentatively identified appellant from a photograph. Detective Wesley took appellant into custody and to the precinct station house, where he directed appellant to empty his pockets and relinquish their contents, which included a bill of sale for a car purchased the day of the second hold-up. Appellant challenges denial of the motion to suppress this item, and its admission in evidence.

Appellant Hill was further detained at the precinct to await processing through the Identification Bureau. Meanwhile Mr. Tino was telephoned by Detective Wesley and requested to come to the station house, where he observed appellant and made a positive identification. Appellant also challenges the admission into evidence of this identification testimony.

In general, a police officer may arrest without warrant anyone who commits an offense in his presence⁷ and as an incident of the arrest, search the subject for weapons.⁸ Items seized on such a search may be used at trial. These doctrines are, however, subject to restriction and limitation where the arrest is a sham,⁹ or where the search exceeds permissible bounds.¹⁰ Appellant's contention at trial was that his arrest for the traffic infraction was a "sham," a mere pretext to detain him and gather evidence which would support Mr. Tino's earlier identification.

At the hearing on the motion to suppress defense counsel sought to inquire into the nature of police routine followed in the case of such offenders. Failure to permit this line of questioning was error.¹¹ A foundation for this exploration was laid when defense counsel established not only the nature of the offense alleged to have occasioned the arrest, but also that the arresting officer was a detective who was aware that the robbery victim had identified defendant from a photograph, and that when defendant was brought to the station house, he was subjected to comprehensive and necessarily time-consuming Identification Bureau procedures. Defense counsel was entitled to establish, if it be the fact, that this procedure was extraordinary for the offense charged, and therefore should have been accorded reasonable latitude in his effort to develop facts as to routine procedure in order to lay the ground work for an inference that a pretext was being used when defendant was arrested, brought to, and detained and searched at the station house, all on an offense of blocking the roadway, and that this procedure was really being followed only because appellant was under suspicion of robbery.¹²

Our remand rests on appellant's right to object to and suppress evidence seized because crucial portions of the procedure that included the search were rooted in sham,¹³ and accordingly we need not consider broader questions, whether in any event the search was outside the bounds of reasonableness for this offense in the absence of probable cause as to the robbery. The case must be remanded for further proceedings to give defendant a full hearing on his motion to suppress.

The remand proceedings may lead us to a thorny question. The prosecution may contend that even assuming there was a concealment or pretext in the way appellant was handled, there is no prejudicial error since there was, it may at least be contended, probable cause as to the robbery, sufficient to justify the warrantless search. Indeed it may even be that the officer referred only to the blocking of the highway because he deemed that enough, but that he would have unhesitatingly arrested defendant for the robbery, there being probable cause in his view, if the other offense had not been at hand. We intimate no view, except to note that this would lead us to the difficult question whether even that assumption would permit continuing the detention for purposes of arranging identification, and delaying presentation of defendant on preliminary examination. The issues are subtle and we do not choose to address them on a hypothesis of sham that may not be justified in fact. Exploration of those issues may become appropriate, depending on the nature and result of the remand proceedings.

Remanded for further proceedings.

BASTIAN, Senior Circuit Judge (concurring in part and dissenting in part):

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