Pittman v. United States

• Decision Date: 11 April 1977
• Docket Number: No. 10326.,10326.
• Citation: 375 A.2d 16
• Parties: David E. PITTMAN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

375 A.2d 16

David E. PITTMAN, Appellant, v. UNITED STATES, Appellee.

No. 10326.

District of Columbia Court of Appeals.

Argued January 12, 1977.

Decided April 11, 1977.

Charles J. Broida, Columbia, Md., appointed by this court, for appellant.

William J. O'Malley, Jr., Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., John A. Terry and William D. Pease, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and FICKLING^* and YEAGLEY, Associate Judges.

YEAGLEY, Associate Judge:

After a jury trial, appellant was convicted of first degree murder while armed (D.C. Code 1973, § 22-2401) and possession of a prohibited weapon (D.C.Code 1973, § 22-3214(a)). He was sentenced to life imprisonment on the murder conviction and two to six years' imprisonment on the weapons conviction. He argues three issues on appeal: (1) Did the trial court err in refusing to suppress a shotgun and leather shoulder bag seized from an open closet in the apartment where appellant was arrested? (2) Were four black and white photographs of the deceased lying in the hallway where he was killed improperly admitted at trial? and (3) Did the prosecutor err in asking appellant at trial why he did not tell the police that he had seen an unidentified man run away from the scene after the shooting occurred?

The murder of which appellant stands convicted occurred on February 17, 1975. Appellant and three other persons drove to the victim's home in northeast Washington. Upon arriving appellant and another man left the car and walked to the victim's house. Appellant was carrying, concealed in the leg of his trousers, a twelve-gauge sawed-off shotgun he had removed from a brown leather shoulder bag and assembled. Appellant told the other man to knock on the victim's door, and, after a short wait, the victim opened the door and was shot with the shotgun.

Appellant was arrested pursuant to an arrest warrant on March 5, 1975, at his sister's apartment in New York City; he does not challenge the legality of his arrest. After appellant had been placed under arrest and handcuffed, a woman in the apartment (appellant's niece) protested appellant's being taken out of the apartment on a March evening clad only in a pair of trousers. The arresting officer (Detective Jonza) went to the back bedroom with appellant's niece to get some clothes for appellant. In the bedroom the officer went to the open closet and saw on the shelf a brown leather bag with something looking like a pipe or barrel protruding an inch or more from the bag. The officer seized the bag, looked into it, and saw a twelve-gauge sawed-off shotgun broken down into three pieces.

The bag and gun were the subjects of a motion to suppress which was denied by the trial judge who ruled that the items were legally seized from the open closet. After a lengthy jury trial, appellant was convicted of the murder and weapon charges.

The first issue on appeal is whether the trial court should have granted appellant's motion to suppress the gun and bag. We hold that the gun and bag were legally seized under the "plain view" exception to the Fourth Amendment's search warrant requirement and that the motion to suppress was properly denied.

In Brooks v. United States, D.C. App., 367 A.2d 1297, 1304-09 (1976), we held that the plain view exception involves two separate tests under Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). First, the officers must be lawfully present at the situs of the seizure;¹ this requirement has both temporal and spatial dimensions. Second, the discovery of the evidence must be inadvertent. Brooks v. United States, supra at 1305, citing Coolidge v. New Hampshire, supra, 403 U.S. at 466, 91 S.Ct. 2022.

In the instant case, the officers were present in the living room of the apartment under authority of a warrant to arrest appellant. At the insistance of appellant's niece that more clothes be obtained for appellant, the police officer accompanied the niece to the bedroom to get those clothes² The officer testified that appellant also requested some clothes after the niece insisted that he not be taken to the police station dressed only in trousers, and further that appellant motioned that the clothes were in the back bedroom. Appellant disputes this testimony regarding his actions. Once in the bedroom near the open closet, the officer saw the bag with a barrel or possible barrel sticking out and seized the bag. The officer's presence at the situs of the seizure was lawful in both the space and time dimensions of the plain view exception; he went to a limited area (back bedroom) when he and the other officers were prepared to leave for the police station with appellant. Second, the bag was discovered inadvertently; the officer was not searching for evidence against appellant but was in the process of obtaining clothes for appellant's convenience when he saw the bag in plain view. The New York police had been informed that appellant had been seen leaving the District with a sawed-off shotgun in a brown leather bag and that such a gun had been used in the killing. The seizure being lawful, the bag was admissible at trial against appellant.³ Walker v. United States, D.C.App., 318 A.2d 290 (1974).

Appellant's second issue on appeal involves the admissibility of four black and white photographs showing the victim in the hallway where he was murdered. We recently stated the general rule that

pictures of the decedent in a murder case are admissible, in the discretion of the trial court, so long as they have some probative value and are not intended solely to inflame the jury. [Womack v. United States, D.C.App., 339 A.2d 37, 38 (1975).]

Reversal is warranted only upon a showing of an abuse of that discretion. Maxwell v. United States, 368 F.2d 735, 739 (9th Cir. 1966). See generally Annots., 73 A.L.R.2d 769 (1960) and 159 A.L.R. 1413 (1945).

We have reviewed the pictures in the instant case and while we wonder why the government offered them in evidence in view of the very strong case it otherwise made, we do not find them so gruesome as to create a risk of inflaming the jury. In each picture the fully-clothed victim was lying face down; in only one photo was the back of the victim's head visible. While the pictures show that the victim was lying in a pool of blood, the blood appears only as a small darkened area on the tile floor.

The fact that appellant did not dispute where the murder occurred does not render the photographs inadmissible so long as they were in some way relevant, either independently or as corroborative of other evidence. Bauldree v. State, 284 So.2d 196, 197 (Fla.1973) (per curiam). Moreover, the fact that the photographs were cumulative

evidence because other witnesses had testified and described the area where the murder occurred does not render the pictures inadmissible provided that their probative value outweighs any prejudice from their use. Jewell v. State, 309 N.E.2d 441, 442-43 (Ind.1974); State v. Parker, 509 S.W.2d 67, 70 (Mo.1974), citing State v. Johnson, 486 S.W.2d 491, 494-95 (Mo.1972). Regarding this issue the trial court said:

I'm going to admit them because they show the perspective of the size of the hall and the area in which the incident is alleged to have occurred. Each of these pictures shows something a little different by virtue of the angle taken — most specifically, the size of the vestibule area and the relationship to the various apartment doors and the stairway.

The photographs were not so inflammatory as to make them inadmissible and we hold that their admission was not an abuse of the trial court's discretion. Womack v. United States, supra at 38; United States v. Hurt, 155 U.S.App.D.C....