Huggins v. United States, 8045.

• Decision Date: 05 March 1975
• Docket Number: No. 8045.,8045.
• Citation: 333 A.2d 385
• Parties: Henry S. HUGGINS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

333 A.2d 385

Henry S. HUGGINS, Appellant, v. UNITED STATES, Appellee.

No. 8045.

District of Columbia Court of Appeals.

Argued October 17, 1974.

Decided March 5, 1975.

Robert T. Smith, Washington, D.C., for appellant.

Barry L. Leibowitz, Asst. U. S. Atty. with whom Earl J. Silbert, U. S. Atty., John A. Terry, James F. McMullin, Carolyn R. Kleiman, and James E. Joyner, Asst. U. S. Attys., were on the brief, for appellee.

Before FICKLING, GALLAGHER and YEAGLEY, Associate Judges.

PICKLING, Associate Judge:

This is an appeal from a judgment of conviction after a nonjury trial for receiving stolen goods in violation of D.C.Code 1973, § 22-2205. The only issue on appeal is whether the trial court erred when it denied appellant's motion for a new trial.^* We affirm.

Appellant testified that for the past 30 years he had operated a hardware store in the District of Columbia. During the last eight years, James Neeley, a friend, would often deposit with him a bag which contained his personal items. Neeley habitually returned either the same day or within a couple of days to retrieve his belongings. On October 25, 1972, Neeley carried a shopping bag to appellant's store and, with appellant's permission, left it there. At the same time, appellant loaned Neeley two dollars.

Officers Bennett and Roche of the Metropolitan Police Department testified that they were informed on October 25, 1972, that a tape recorder had been stolen in the area and that the suspected thief was going to take it to appellant's store. Neeley was observed to enter the store carrying a shopping bag, exchange it for money, and depart without it. After obtaining a search warrant, the officers searched appellant's store where they found a stolen recorder in a shopping bag. Thereafter, appellant was charged with receiving stolen goods.

On January 22, 1973, the Assistant United States Attorney originally assigned to the case decided to nolle prosequi the charge of receiving stolen goods. Thereafter, appellant entered a guilty plea to a charge of possession of unregistered firearms, such firearms having been discovered during the search.

Subsequently, the United States Attorney's office reexamined the evidence against appellant and charged him again with receiving stolen goods. On May 29, 1973, a jury trial was begun in the Superior Court. During the course of the trial, Officer Bennett testified on cross-examination that the tape recorder was found in the same shopping hag that Neeley had carried into the store. On the same day during subsequent proceedings, however, a mistrial was declared for reasons not material to the instant case.

On July 31, 1973, a new trial commenced without a jury. During this trial, Officer Bennett testified on direct examination that he had discovered the stolen recorder in a bag other than the one which Neeley carried into the store. Defense counsel, who had before him the transcript of the first trial, did not attempt to impeach Officer Bennett on the basis of prior inconsistent testimony. However, defense counsel asked the witness the following:

Q: Did you ever before testify that this tape recorder wasn't in that bag that it came into the store in?

A: No, sir.

Q: This is the first time you testified as to that?

A: Yes, sir.

Q: Where is that bag that came into the store?

A: That bag has been discarded.

Q: Why?

A: I don't know why.

The case proceeded to conclusion and appellant was found guilty.

Thereafter, appellant moved for a new trial on the basis of the officer's inconsistent testimony. The motion was denied and this appeal followed.

Whether a trial judge grants a new trial is a matter governed by Super.Ct.Cr.R. 33. That rule states, inter alia, that new trials may be ordered on the basis of newly discovered evidence or in...