Ricks v. United States

• Decision Date: 06 April 1967
• Docket Number: No. 4163. {DO] No. 4164. {DO] No. 4165.,4163. {DO] No. 4164. {DO] No. 4165.
• Citation: 228 A.2d 316
• Parties: Hattie Mae RICKS, Appellant, v. UNITED STATES, Appellee. Joseph N. WILLIAMS, Appellant, v. UNITED STATES, Appellee. Hattie Mae RICKS, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

Page 316

228 A.2d 316

Hattie Mae RICKS, Appellant, v. UNITED STATES, Appellee. Joseph N. WILLIAMS, Appellant, v. UNITED STATES, Appellee.

Hattie Mae RICKS, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 4163. {DO] No. 4164. {DO] No. 4165.

District of Columbia Court of Appeals.

Argued February 6, 1967.

Decided April 6, 1967.

As Modified April 25, 1967.

Monroe H. Freedman and Sol Rosen, Washington, D. C., for appellants.

Theodore Wieseman, Asst. U. S. Atty., with whom David G. Bress, U. S. Atty., Frank Q. Nebeker and Earl J. Silbert, Asst U. S. Attys., were on the brief, for appellee in Nos. 4163 and 4164.

Ted D. Kuemmerling, Asst. Corp. Counsel, with whom Charles T. Duncan, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, were on the brief, for appellee in No. 4165. Richard W. Barton, Asst. Corp. Counsel, entered an appearance for appellee.

Before HOOD, Chief Judge, MYERS, Associate Judge and CAYTON (Chief Judge, Retired).

CAYTON, Judge.

Appellants were convicted under "The Narcotic Vagrancy Statute," D.C.Code 1961, § 33-416a which provides, inter alia:

(a) The purpose of this section is to protect the public health, welfare, and safety of the people of the District of Columbia by providing safeguards for the people against harmful contact with narcotic drug users who are vagrants within the meaning of this section and to establish, in addition (to another Act) * * *, further procedures and means for the care and rehabilitation of such narcotic drug users.

(b) For the purpose of this section —

(1) the term "vagrant" shall mean any person who is a narcotic drug user or who has been convicted of a narcotic offense in the District of Columbia or elsewhere and who — (A) having no lawful employment or visible means of support realized from a lawful occupation or source, is found mingling with others in public or loitering in any park or other public place and fails to give a good account of himself; or

* * * * * *

(C) wanders about in public places at late and unusual hours of the night, either alone or in the company of or association with a narcotic drug user or convicted narcotic law violator, and fails to give a good account of himself * * *. (Emphasis supplied.)

Appellant Ricks was also convicted of violating the so-called "General Vagrancy Statute," D.C.Code 1961, § 22-3302 which states:

The following classes of persons shall be deemed vagrants in the District of Columbia:

(1) Any person known to be a pickpocket, thief * * * or felon, either by his own confession or by his having been convicted in the District of Columbia or elsewhere of any one of such offenses or of any felony, and having no lawful employment and having on lawful means of support realized from a lawful occupation or source, and not giving a good account of himself when found loitering around in any park * * * or other public place * * *.

* * * * * *

(8) Any person who wanders about the street at late or unusual hours of the night without any visible or lawful business and not giving a good account of himself. (Emphasis supplied.)

The appeals from the three convictions were consolidated for argument. The factual situations which culminated in the arrests and convictions are essentially as follows.

Appellant Williams was observed on three occasions between 11:00 p. m. and 3:20 a. m. for varying lengths of time. According to government testimony, each time he was in the company of at least one convicted prostitute known to be a narcotics user. He persistently denied use of narcotics but had old and new needle marks on his arms. He was accused by a dissatisfied customer of providing her with six capsules of sugar and quinine which had been sold as heroin. Within earshot of the police, he denied that he had sold her "bad stuff" and insisted that it was "good" heroin. He was known to the officers as a twice convicted felon under the narcotic statutes. This appellant gave conflicting stories as to his employment and unsatisfactory explanations as to his reasons for being present on the streets at those hours.

As to her § 33-416a conviction, appellant Ricks was observed four times. (Police Department policy calls for three "observations" prior to arrest.) After midnight she spent 45 minutes in a carry out shop without making any purchase, leaving twice with different men and returning shortly thereafter alone. On another occasion at 9:30 p. m. she was standing with two narcotics violators and prostitutes and later on alone. Three times between 4:00 and 4:45 a. m. on another day she was seen getting in and out of parked cars with men at the wheels. The fourth observation was made at 10:50 p. m. At that time her arms showed old and new needle marks. On one of the above incidents, she admitted using narcotics. She gave conflicting stories on her employment and at one time refused to indicate her place of employment.

The general vagrancy conviction grew out of the following circumstances. At 3:08 a. m. she was standing in front of a building which had been raided as a house, of ill-fame with convictions resulting. She stopped a man and the two proceeded to the door of another such house. Appelllant, on questioning as to who her companion was, said his name was "James." The man indicated it was Herman. She admitted being unemployed and her arms evidenced recent marks of narcotic use. As 1:04 a. m. on another day, she flagged down an automobile to ask the male occupant if "he was sporting tonight." She told this individual that she "didn't turn tricks" in anyone's car and for him to come with her to a certain address. Three days later at 4:10 a. m., she was again observed standing on a corner and admitted that she was unemployed. On another occasion she was observed by a different officer at 1:30 a. m. approaching another male whose name she was unable to correctly state. She had scab marks on her arms. At trial, appellant admitted convictions for soliciting prostitution, petty larceny and for violations of the Uniform Narcotics Act, these convictions having been known to the officers.

Appellants urge six grounds for reversal of their convictions.

I

It is contended that the Vagrancy Statutes improperly require (presentation and) proof of prior convictions, and thereby deny due process and a fair trial. One can be guilty of violating either statute without having previously been convicted. Both statutes embody separate paragraphs which disjunctively set up criteria amounting to vagrancy. Within these paragraphs, § 416a deals with convicted narcotics users; § 3302 deals with known pickpockets, thiefs, burglars, etc. But prior convictions are not essential to all the subsections. Both statutes require other factors which conjunctively amount to the violation. Even if this were not true, a long line of cases in this jurisdiction has held prior convictions admissible. Clark v. District of Columbia, D.C.Mun.App., 34 A.2d 711 (1943); Riley v. District of Columbia, D.C.App., 207 A.2d 121 (1965).¹

II

Appellants argue that the statutes unreasonably restrict freedom of movement in violation of the Due Process Clause of the Fifth Amendment citing Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958) and Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed. 2d 992 (1964). These cases refer to passport requests for international travel. While we are mindful of the danger of analogy, on the same subject the Supreme Court has said: "The fact that a liberty cannot be inhibited without due process of law does not mean that it can under no circumstances be inhibited." (Footnote omitted.) Zemel v. Rusk, 381 U.S. 1, 14, 85 S.Ct. 1271, 1274, 14 L.Ed.2d 179 (1965). We considered and rejected this argument urged by appellants in Jenkins v. United States, D.C.Mun.App., 146 A.2d 444, 446 (1958). Anyone using the streets for lawful business in a lawful manner may do so without restriction.

III

It is also argued that punishment is imposed in cases like these despite the absence of any overt criminal act, without criminal intent and without causation of harm. This, it is claimed, violates the Eighth Amendment's prohibition against cruel and unusual punishment.

The argument seems bottomed on our dictum in Hunt v. District of Columbia, D.C.Mun.App., 47 A.2d 783, 784, affirmed, 82 U.S.App.D.C. 159, 163 F.2d 833 (1947), that "Vagrancy is a status or condition and the statute punishes one for being a certain kind of person, not for the doing of an overt act." But there we also said:

The crime is personal and individual. * * * (I)n essence it is a personal condition arrived at not instantaneously but by a mode of living. Ibid. (Emphasis supplied.)

A "mode of living" involves acts. Thus, it is overt acts, a course of conduct, rather than "an overt act" which is prohibited by the statutes in question. Criminal intent was clearly revealed from the factual circumstances related above although we have held proof of this unnecessary. Wilson v. United States, D.C.App., 212 A.2d 805, 806 (1965) and cases there cited. Causation of harm was likewise manifest. Specifically, the men solicited by Ricks and the woman who tried to buy narcotics from Williams were victimized or otherwise exposed to criminal activity. Generally, the interrelation of crime and narcotics use had been clearly recognized. See Vauss v. United States, 365 F.2d 956, 957 (D.C.Cir.1966); Hansford v. United States, 122 U.S.App. D.C. 320, 322, 353 F.2d 858, 860 (1965). The official statistics too are impressive; for example, fifty-six percent of all prostitution-related offenses were found to have been committed by drug users.²

Appellants also contend that their conviction should be reversed on the holding in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). It is claimed that they are being punished solely for their "status" as vagrants.

The statute in Robinson stated that "No person...