Sawyer v. United States, 16536.

• Citation: 112 US App. DC 381,303 F.2d 392
• Decision Date: 19 April 1962
• Docket Number: No. 16536.,16536.
• Parties: Elwood SAWYER, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

112 US App. DC 381, 303 F.2d 392 (1962)

Elwood SAWYER, Appellant, v. UNITED STATES of America, Appellee.

No. 16536.

United States Court of Appeals District of Columbia Circuit.

Argued December 15, 1961.

Decided April 19, 1962.

Petition for Rehearing Denied May 18, 1962.

Mr. Aloysius B. McCabe, Washington, D. C. (appointed by this court), for appellant.

Mr. Judah Best, Asst. U. S. Atty., with whom Mr. David C. Acheson, U. S. Atty., and Messrs. Nathan J. Paulson and Victor Caputy, Asst. U. S. Attys., were on the brief, for appellee.

Before WILBUR K. MILLER, Chief Judge, PRETTYMAN, Senior Circuit Judge, and BURGER, Circuit Judge.

Petition for Rehearing En Banc Denied En Banc May 18, 1962.

PRETTYMAN, Senior Circuit Judge.

This is an appeal from a conviction for robbery, after trial before a jury in the District Court.

On December 30, 1960, a store was held up at gunpoint, and cash was taken from the register. Almost a month later, on January 22, 1961, two young men were arrested in connection with a series of other robberies. Appellant Sawyer was named by them as a participant in the December 30th affair. He was thereupon arrested, taken directly to the office of the Robbery Squad, and confronted by his accusers. A few minutes thereafter he "started talking" and acknowledged his participation in the robbery. Within less than an hour of his arrest the typing of his statement was begun. The arrest was at 3:30 p. m.; the typing was begun at 4:20 p. m.; and the typewritten statement was completed between 4:40 and 4:50 p. m.

Upon the trial counsel for appellant and his co-defendant objected to the admission of the statements, oral and written, on the ground of coercion. The trial judge held a hearing out of the jury's presence; Sawyer testified that he had been abused physically and mentally by the police officers; the Government offered rebuttal testimony; and the trial judge denied the motion to exclude and later admitted the evidence, submitting to the jury the question of voluntariness. Sawyer took the stand and repeated his accusations of beating and mistreatment. The Government again presented rebuttal testimony.

I

Upon this appeal the appellant cites and relies upon Mallory v. United States.¹ We find no "Mallory" question in this case. There was no delay, necessary or unnecessary, between the arrest and the confession. As a matter of fact, the objection interposed was not upon the ground of delay but was upon the ground of coercion, and that question was submitted to the jury with instructions to which no objection was taken, or indeed could have been taken.

II

Shortly after the events above recited, somewhere between five and six o'clock the day of the arrests, the lady who had been held up in the December 30th robbery was brought to the Robbery Squad Office and immediately identified Sawyer as one of the robbers; she easily identified him because prior to the robbery he had been in the store as a customer. Sawyer recognized her and said she had been standing behind the counter when he entered the store on December 30th and she had her hands in a bucket of water washing something. Both this lady witness and a detective who was present at the confrontation testified to this statement by Sawyer. No objection was made to the testimony of either witness. On this appeal Sawyer argues that this statement by him to the lady was inadmissible because it came too long after his arrest and was the product of a systematic and skillful police interrogation. We find no evidence to support these contentions and no error in the admission of this testimony. As a matter of fact, we think the police activity in these respects was proper and commendable. They proceeded at once upon the arrest and initial accusation to check the identification of the accused as made by two admitted accomplices. The lady said the police located her place of employment and reached her "as soon as I got on the job". There was no evidence of a prolonged interrogation of the accused.

III

Upon the trial Sawyer took the stand in his own behalf. He denied complicity in the December 30th robbery. He testified that he was beaten continuously for twenty or thirty minutes by police officers, until he signed a paper of the contents of which he had no knowledge. He said he had not made any admissions and that he was not identified by the lady witness until the morning after the day of his arrest. One of the young men (Wilbur Queen) who had been arrested earlier in the day, and who implicated Sawyer in the December 30th robbery, took the stand and testified that Sawyer had been beaten by the police and that he (Queen) also had been forced to sign a confession with respect to the December 30th robbery. He denied that Sawyer had been implicated in that robbery. On cross-examination he was shown a written statement bearing his name and said that he had been forced to put Sawyer's name in it. At this point the trial judge interrupted and warned the jury that this statement was not offered as proof of any facts but was...