Punch v. United States
| Decision Date | 22 September 1977 |
| Docket Number | No. 10605.,No. 10889.,No. 10584.,No. 10653.,10584.,10605.,10653.,10889. |
| Citation | 377 A.2d 1353 |
| Parties | Ricardo B. PUNCH, Appellant, v. UNITED STATES, Appellee. Harry A. JACKSON, Appellant, v. UNITED STATES, Appellee. Robert W. ALSTON, Appellant, v. UNITED STATES, Appellee. Alton R. COFFIELD, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Robert E. McMillen, Washington, D. C., appointed by this court, for appellant Punch.
Herbert P. Suskind, Washington, D. C., appointed by this court, for appellant Jackson.
Arthur L. Willcher, Washington, D. C., appointed by this court, was on the consolidated brief, for appellant Alston.
William T. Shannon, Washington, D. C., appointed by this court, for appellant Coffield.
Sallie H. Helm, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and James F. Rutherford, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before NEWMAN, Chief Judge, and KELLY and KERN, Associate Judges.
Appellants Punch, Jackson, Alston and Coffield were jointly indicted, each charged with one count of carrying a pistol without a license and one count of possession of marijuana. Tried jointly by a jury, all were convicted of the weapons offenses but only Jackson was convicted of possession of marijuana. On appeal, each appellant raises search and seizure and evidentiary issues. Jackson challenges the trial court's refusal to accept his plea of guilty to the marijuana charge. Punch, Jackson and Alston challenge the sufficiency of the indictment to allege an "infamous crime." Finding no reversible error, we affirm.
On February 14, 1975, near midnight, Officer Swigert of the Metropolitan Police Department was on patrol in a marked police cruiser at the corner of Ninth and S Streets, N.W. It was dark, the street lights were on, as were the headlights of Swigert's police cruiser. Swigert observed an automobile, its headlights off, pass him and stop at a red light. As the vehicle stopped, the Officer observed that there were four persons in the car1 and that the front seat passenger reached forward or leaned down and then sat upright.
Deciding to make a traffic stop because of the traffic violation (headlights not illuminated during hours of darkness) — Highway and Traffic Regulations, 17 D.C.Reg. § 119 (1970), Swigert pulled the car to the curb. He came to the driver's door, informed Punch that the headlights were off and requested his driver's license and auto registration. Punch produced the auto title and a temporary registration, but no driver's license. Swigert noted that the expiration date on the temporary registration was February 7 and that the temporary paper tags' expiration date had "fairly obviously" been altered by insertion of "1" in front of the "7," thereby converting 7 to 17.
The officer made a computer check and was informed that although the car was registered to the driver, the computer had no record of a driver's license issued in his name. During this time, Swigert was radioed by another police officer who informed Swigert of a prior arrest of Punch for carrying a pistol without a license. Being apprehensive, Swigert called for backup units.
When assistance arrived, Swigert asked everyone out of the car and arrested Punch for driving without an operator's permit. D.C.Code 1973, § 40-301(c). He then looked under the driver's seat and saw three pistols. The guns were seized and the other three appellants arrested. Subsequent search of the car at the scene disclosed three manila envelopes containing marijuana and another gun. A search of Jackson disclosed marijuana in his front pocket. Upon arrival at the station, with the car impounded, a further search disclosed four hats and five stocking masks. Motions to suppress the seized items were heard and denied.2
Where a traffic offense is committed within the presence of a police officer, a stop of the vehicle and subsequent arrest for the traffic offense is generally lawful. Taylor v. United States, D.C.App., 259 A.2d 835 (1969). An exception to this general rule may exist where the traffic stop is a sham to mask other purposes. See Mincy v. District of Columbia, D.C.App., 218 A.2d 507, 508 (1966). Non-random spot-checks of vehicles have recently been condemned. United States v. Montgomery, 561 F.2d 875 (D.C.Cir., 1977). Contra, Palmore v. United States, D.C.App., 290 A.2d 573, 582-83 (1972), cert. granted on other grounds and on those grounds aff'd, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973).
The stop here involved was predicated on a traffic offense committed in the officer's presence. There is no evidence that the stop was either a non-random spotcheck or a sham. It was a constitutionally permissible stop. Taylor v. United States, supra. Appellant contends, however, that the vehicular searches thereafter were unconstitutional.
Our analysis of this contention must begin with the recognition that warrantless searches "are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). One of the "specifically established and well-delineated exceptions" is a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Where there is a valid arrest, police are authorized by this exception to search the person of the arrestee and "the area from within which he might have obtained either a weapon of something that could have been used as evidence against him." Id. at 768, $9 S.Ct. at 2043. The fact that the arrest is for a traffic offense does not narrow the authority to search incident thereto. United ed States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).
When Officer Swigert arrested Punch, he had the following information. Punch was driving a car with altered temporary tags. He had previously been arrested for carrying a pistol without a license. The officer had seen the front seat passenger reach forward or lean down and then sit upright after their car had passed a marked police cruiser and come to a stop at a traffic light. These facts coupled with a valid arrest3 alongside the car, justified the police officer in examining under the driver's seat of the vehicle, the seat closest to the arrestee, to look for weapons.4 Having discovered three weapons, the subsequent search of the vehicle at the scene was constitutionally justified. Hurley v. United States, D.C.App., 273 A.2d 840 (1971).5
Appellants' next assignment of error pertains to an evidentiary ruling of the trial court. Over appellants' objection, the trial judge admitted into evidence the hats and stocking masks and one of the four guns which is alleged to have been inoperative.6 Their contention is that these items were not relevant to the crimes charged. Their contention is that these items were not relevant to the crimes charged.
Relevant evidence is that which tends to make the existence or nonexistence of a fact more or less probable than would be the case without that evidence. United States v. Carter, 173 U.S.App.D.C. 54, 73, 522 F.2d 666, 685 (1975). Where evidence has probative value and is thus relevant, but possesses the potential for prejudicial misuse by the jury, the trial judge, in exercising his discretion as to its admission, must weigh the probative value against the risk of prejudicial impact. Wooten v. United States, D.C.App., 285 A.2d 308 (1971); Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). Once a trial judge has made such a determination as to this balance and exercised his judgment, we will disturb this ruling only upon a showing that the trial judge abused his discretion. Wooten v. United States, supra; Harper v. United States, 99 U.S.App.D.C. 324, 239 F.2d 945 (1956).
Where the government utilizes the theory of constructive possession, it must establish (usually by circumstantial evidence) both guilty knowledge and access. United States v. Anderson, 165 U.S.App. D.C. 390, 509 F.2d 312 (1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975). The masks and the hats being in what appeared to be matched sets of fours,7 along with the four loaded guns and four occupants of the car were, to say the least, probative on the issue of guilty knowledge. Thus, these items were relevant evidence. We cannot say that the trial judge struck an improper balance between probative value and risk of prejudicial impact. Hence, we cannot say he abused his discretion in admitting them.8
Prior to trial, but after the suppression hearing, appellant Jackson sought to withdraw his plea of not guilty to possession of marijuana and to enter a plea of guilty to that count while continuing forward to trial on his not guilty plea to the gun charge. The trial judge did not seek to determine: (1) whether Jackson, after advice by counsel, or waiver thereof, fully understood the significance of his action in tendering a plea of guilty, Kercheval v. United States, 274 U.S. 220, 223-24, 47 S.Ct. 582, 71 L.Ed. 1009 (1927); (2) whether he was acting intelligently, freely, and voluntarily, and not from coercion or impermissible inducement, id.; and (3) whether there was a factual basis for the plea. Super.Ct.Cr.R. 11. The government urged that without its consent, appellant could not plead guilty to one count of a two count indictment. Rather, the government urged that he should be required to plead guilty to both the weapon and the marijuana counts or not be permitted to plead guilty at all. The trial court, agreeing with the government's thesis, declined to accept the plea to the one count.
The applicable Superior Court Criminal Rule as it existed on January 6, 1976, the date of the tendered plea, read in relevant part:
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