Naples v. United States

• Decision Date: 09 November 1964
• Docket Number: No. 18186.,18186.
• Citation: 344 F.2d 508,120 US App. DC 123
• Parties: John A. NAPLES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

120 US App. DC 123, 344 F.2d 508 (1964)

John A. NAPLES, Appellant, v. UNITED STATES of America, Appellee.

No. 18186.

United States Court of Appeals District of Columbia Circuit.

Argued May 6, 1964.

Decided November 9, 1964.

Mr. Alexander B. Hawes (appointed by this court), Washington, D. C., with whom Miss Elise B. Heinz, Washington, D. C., was on the brief, for appellant.

Mr. Anthony A. Lapham, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Mr. Frederick G. Smithson, Asst. U. S. Atty., at the time the record was filed, also entered an appearance for appellee.

Before BAZELON, Chief Judge, and BASTIAN and WRIGHT, Circuit Judges.

BAZELON, Chief Judge.

In Naples v. United States, 113 U.S. App.D.C. 281, 307 F.2d 618 (1962) (en banc), we reversed appellant's conviction of murder in the first degree, murder in the second degree, housebreaking and petty larceny. Upon retrial he was convicted of murder in the first degree, murder in the second degree, and housebreaking,¹ and the jury unanimously recommended life imprisonment. He again seeks reversal.

I.

We consider first the admissibility of confessions which, according to two police officers, were made by appellant in the following circumstances. Immediately after his arrest, appellant was brought to the Ninth Precinct Police Station and taken to the second floor office of Lieutenant Culpepper, who testified:

"I told the defendant that I was a police officer, and that he did not have to talk to me unless he wanted to.

"He replied, `I know that.\'

"I asked him if he had done something that he knew to be wrong, and if he wanted to tell me about it.

"And he said, `About what?\'

"And I said, `Have you done something that is wrong and that you are ashamed of and want to tell the truth about?\'

"And he said, `Do you mean about the lady?\'

"And I said, `Yes.\'

"He said, `Well, I was prowling in the hallway,\' and I interrupted and said, `What hallway?\'

"He said, `The hallway in the apartment next to where I live.\'

"And I said, `Where do you live?\'

"He replied, `The 200 block of Massachusetts Avenue, Northeast.\'

"I asked him to continue. He then said that he was prowling in the hallway, looking for something to steal; that he was standing in front of the mail boxes, when he noticed that the last apartment on that floor, the first floor, was ajar; the door was not closed.

"He walked over to the door and stood there for some time, and became aware that no one was in the apartment. He said he knew no one was in the apartment because they would have heard him, had there been someone there. He went into the apartment, looked through the apartment and searched it. He found, took two dollars from a drawer in a small table.

"He was looking into a closet, when a white lady came in. She stood at the door and shouted and said, `What are you doing here,\' and threw her pocketbook at him, and at the same time said, `Get out of here.\'

"He related then that everything went dark, and then the next thing he realized was that he was leaning over the lady. She was on the floor. He saw lots of blood and he had blood on his hands, and he knew that he had hurt her." Emphasis supplied.

On the former appeal, we held the substance of this testimony was not excluded by Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). Naples v. United States, 113 U.S.App. D.C. 281, 307 F.2d 618 (1962).² Without considering the merits of this holding, we apply it as the law of the case to sustain admission of this testimony.

At the second trial there was testimony of further admissions not offered at the first trial. After appellant had finished his statement to Culpepper, he was taken from Culpepper's second-floor office to a room on the first floor for booking, and returned to Culpepper's office ten to fifteen minutes later. Captain Hartnett then arrived. He testified:

"Well, after he Culpepper introduced the defendant, Lieutenant Culpepper, in his the defendant\'s presence, then told me that he had talked to the defendant and that he told him that he was the one who had been in the apartment on Massachusetts Avenue and had the trouble with the woman.

* * * * * *

"Q. What else was said or done at that time by anyone?

"A. Well, after Lieutenant Culpepper had run through in substance, what the defendant had told him, I told him I had a couple of questions I wanted to ask him.

"Q. Now, what exactly, did the Lieutenant run through, if you can recall?

"A. Well, the substance of it was —

"MR. NORDLINGER Defense Counsel: This, of course, is over our objections for the reasons discussed at the bench, Your Honor.

"THE COURT: All right. Denied.

"THE WITNESS: That the defendant had told him that he lived in the next apartment to 225, he lived next door; that he had gone into 225 Massachusetts Avenue to look around, that he noticed the apartment door was slightly open, he went into this apartment, he looked around and started going through things. While he was in there the woman came in on him and that he struck her several times, and, well, that\'s about the gist of it.

"BY MR. SMITHSON:

"Q. He said he struck her several times?

"A. He struck her a couple of times." Emphasis supplied.

Captain Hartnett's testimony differed from Lieutenant Culpepper's in one crucial respect. Culpepper testified that appellant said he had no memory of hurting the woman. Hartnett testified that Culpepper told him, in appellant's presence, that appellant had said he "struck her several times" or "a couple of times." Since appellant's defense of insanity rested largely on his claim that, because of an epileptic seizure when the woman entered the room, he remembered nothing, the prosecution relied heavily on Hartnett's testimony to show that appellant did remember.

Defense counsel objected to the admission of Hartnett's testimony on Mallory grounds. He urged that the Hartnett interview took place after the initial statement to Culpepper and during a period of unreasonable delay. In overruling this objection, the trial court said the admissions to Culpepper and to Hartnett were "one continuous confession or admission." We need not rule on this point, because we think this testimony by Hartnett is hearsay and appellant's assent to the statement that "he struck her" was not clear enough to allow Hartnett's testimony under the adoptive admission exception to the hearsay rule.

Hartnett did not testify that appellant said to him that appellant struck the woman. Hartnett testified that Culpepper recounted to Hartnett, in appellant's presence, that appellant had admitted to Culpepper that he struck the woman. This was double hearsay. Before the jury, Hartnett did not testify that appellant affirmatively agreed to the statement that he struck the woman. But the jury may have inferred that appellant remained silent and may have thought that appellant thereby agreed to Culpepper's statement, as reported by Hartnett, that appellant said he struck the woman. Earlier at a hearing not in the presence of the jury, on the question of this testimony's admissibility, Hartnett had testified that, after Culpepper had completed his resume of appellant's admissions, "I turned to the defendant and I said, `Is what * * * the Lieutenant said right?' He nodded his head `Yes.'"

"Multiple hearsay is, of course, even more vulnerable to all the objections which attach to simple hearsay, and it seems that if it is to come in at all, each of the out-of-court statements must satisfy the requirements of some exception to the hearsay rule." McCORMICK, EVIDENCE § 225, at 461 (1954). The only exception which could be considered here is the one regarding adoptive admissions. Testimony that an accused adopted statements of another person as his own admissions may be let in under this exception if it clearly appears that the accused understood and unambiguously assented to those statements. Skiskowski v. United States, 81 U.S.App.D.C. 274, 158 F.2d 177 (1946), cert. den. sub nom., Quinn v. United States, 330 U.S. 822, 67 S.Ct. 769, 91 L.Ed. 1273 (1947).³ "* * * The question of fact whether the party's conduct manifested his assent to the statement of the other person is a preliminary question for the judge. Unless he so finds, the statement is excluded."⁴ In the present case, the trial court was not requested to consider this question and it did not.

It also appears that if testimony is allowed as an oral adoptive admission, the jury should be cautioned "against trusting overmuch to the accuracy of such testimony," since there are "great possibilities of error in trusting to recollection-testimony of oral utterances, supposed to have been heard. * * *" 7 WIGMORE, EVIDENCE § 2094, at 468 (3d ed. 1940).⁵ But no such instruction was sought or given here.

We think the record does not permit a fair inference that appellant agreed to the statement that he had "struck the woman." Appellant, described by a Government witness as having a "low average" intelligence quotient, had been arrested and taken to a police station, interviewed by one officer in a private room, taken downstairs to be booked by another officer, and returned upstairs to be confronted by yet another officer. Appellant then allegedly heard Culpepper tell Hartnett that appellant admitted the following: that he lived next door to 225 Massachusetts Avenue, that he had gone into 225 Massachusetts Avenue to look around, that he noticed the apartment door was slightly open, that he went into this apartment, that he looked around and started going through things, that while he was there the woman came and that he struck her several times. Appellant allegedly responded to this lengthy statement either by remaining silent or by nodding his head "Yes." Either response gives little assurance that appellant adopted, as his own admission, every detail of the statement or, more particularly,...