Smith v. United States, 17466

• Decision Date: 26 September 1963
• Docket Number: 17534.,No. 17466,17466
• Citation: 324 F.2d 879
• Parties: Wilson M. SMITH, Jr., Appellant, v. UNITED STATES of America, Appellee. Raymond BOWDEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

324 F.2d 879 (1963)

Wilson M. SMITH, Jr., Appellant, v. UNITED STATES of America, Appellee.

Raymond BOWDEN, Appellant, v. UNITED STATES of America, Appellee.

Nos. 17466, 17534.

United States Court of Appeals District of Columbia Circuit.

Argued April 24, 1963.

Decided September 26, 1963.

Petition for Rehearing Denied November 18, 1963.

Mr. Kenneth D. Wood, Washington, D. C., (appointed by the District Court) for appellant Wilson M. Smith, Jr.

Mr. Bernard Margolius, Washington, D. C., with whom Mr. Ben Greenspoon, Washington, D. C., (both appointed by the District Court) was on the brief, for appellant Raymond Bowden.

Mr. David C. Acheson, U. S. Atty., with whom Messrs. Charles T. Duncan, Principal Asst. U. S. Atty., and Frank Q. Nebeker and William H. Willcox, Asst. U. S. Attys., were on the brief, for appellee.

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

Petition for Rehearing En Banc Denied November 18, 1963.

BURGER, Circuit Judge.

These are appeals from murder and robbery convictions in which there is urged upon us the novel point that the testimony of an eyewitness to the crime must be suppressed because the police learned from appellants, during a period of illegal detention, of the existence and identity of such an eyewitness. In short it is argued that because the confessions made during the "unnecessary delay" are inadmissible, the testimony of an eyewitness to the crime must also be suppressed because the existence of the eyewitness was revealed to police by appellants during the same period of time.

Appellant Smith, in No. 17466, was found guilty of so-called felony murder, D.C.Code Ann. § 22-2401 (1961), of second degree murder and of robbery. Bowden in No. 17534 was found guilty of robbery. Neither appellant testified and the evidence as to the events comes from the eyewitness whose testimony was sought to be suppressed.

Undisputed testimony from Philip Holman, the challenged witness, shows that Smith and Bowden set out with Holman, age 14, one evening from Bowden's home. By 7:45 p. m. the trio had reached Kalorama Park, where they separated, Smith continuing on one side of the street while Bowden and Holman remained on the other. Holman's testimony at the trial was that a man got out of a car and Smith approached him from behind and beat him repeatedly on the head, using a tree limb as a club. Bowden immediately crossed the street to join Smith and, after plundering the body of the victim, the two ran from the scene of the crime, with Holman following, to Dupont Circle. There they divided the stolen money.

The victim was Miksa Merson, a 65-year-old pianist and music teacher. He had been struck down a few steps from his home at 2314 Ashmeade Place, N. W. Within minutes a passerby discovered Merson badly beaten and covered with blood. Emergency treatment at Georgetown Hospital was unavailing and he died shortly after reaching the hospital.

The police had few clues. They discovered the club used in the killing and two cards dropped from Merson's wallet. Five days after the crime the Chief of Police received an envelope from an unknown source containing an anonymous note and eleven credit and identity cards representing personal papers of the deceased. One of the cards contained an identifiable palm print. The police also knew that the dead man's gold watch was missing. Six days after the slaying the police did not know how many persons were involved in the killing, nor did they have any "leads" as to the identity of the killer.

On Friday evening, March 9, the police arrested Smith and Bowden in connection with another robbery in the vicinity of the Merson killing. Their arrest was unrelated to the Merson killing for at this time Smith and Bowden were not linked to that case. When the victim of the second robbery failed to identify either appellant, Bowden, the juvenile, was released, but Smith was detained overnight for the purpose of presenting him in a line-up the next morning. We will return later to the legal questions raised by detaining Smith in these circumstances.

Detective Preston, the homicide officer primarily responsible for the investigation of the Merson murder, observed Smith in the line-up on Saturday morning March 10, and learning of the circumstances of his arrest suspected a connection with the Merson case. He sent for Smith and questioned him that morning; at 10:05 Smith's fingerprints and palm prints were taken. At about 11:20 Smith took a polygraph examination, which was completed at 2:00 p. m.

Meanwhile, at 10:30 a. m., Officer Eccles went to Bowden's home and, after Bowden agreed to accompany him, took him to the homicide office, where he remained for about a half hour without questioning. Eccles noticed that Bowden was wearing a watch matching the description of the watch believed to have been taken from Merson. When Bowden could not adequately account for possession of the watch, Eccles retained it. The watch was later definitely identified as Merson's. On completion of a polygraph test given at his own request, Bowden was questioned by Detective Preston at 2:00 p. m. Bowden confessed, implicated Smith and offered to aid in a reenactment of the events. This he did, after which he signed a written statement admitting his role in the crime and describing Smith's part.

On Sunday morning Smith, who was now in his second day of detention without being presented to a judicial officer and who had not yet admitted involvement in the crime, was questioned. Smith spoke freely and willingly at the Sunday morning interview and confessed to the murder. In this oral confession Smith referred to a third person at the scene of the crime. A few minutes after Smith's confession, Bowden arrived at the homicide office and the two repeated their confessions. Both referred to the third person as a boy called "Red," told the police the general area where he lived, and told them that a picture of "Red" was in police records. From these leads the police were able to locate Holman.

On these appeals it is urged (1) that it was error to receive Holman's testimony because the police found this witness as a result of information obtained while appellants were illegally in custody and (2) that it was error to admit in evidence Smith's palm print obtained from him on the day before trial, which palm print corresponded with the palm print on the automobile registration card of the decedent.

The District Court correctly ruled that oral and written confessions were inadmissible because they were made during a period of illegal detention. The prosecution conceded that the Mallory case was controlling as to the confession of Smith, and the Harling¹ case controlled as to Bowden.

In essence these appeals present the familiar "fruit of the poisonous tree" argument but in a novel form not unlike that presented in Payne v. United States, 111 U.S.App.D.C. 94, 294 F.2d 723 (1961), cert. denied, 368 U.S. 883, 82 S.Ct. 131, 7 L.Ed.2d 83. The crucial evidence against Smith was the testimony of Holman, the eyewitness to the crime.

Courts have gone a long way in suppressing evidence but no case as yet has held that a jury should be denied the testimony of an eyewitness to a crime because of the circumstances in which his existence and identity was learned. However, in our view, the relationship between the inadmissible confessions and Holman's testimony in the District Court months later is so attenuated that there is no rational basis for excluding it. No case has been cited to us in which the testimony of an eyewitness or factual witness has been excluded because his identity was discovered as a result of disclosures made by an accused during detention violative of Rule 5(a) Fed.R. Crim.P. Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465 (1958), is not applicable. Cf. Bynum v. United States, 107 U.S.App.D.C. 109, 274 F.2d 767 (1960).

The District Judge correctly read this court's holding in Killough v. United States, 114 U.S.App.D.C. 305, 315 F.2d 241 (1962), as not requiring the exclusion of Holman's testimony. Neither the Killough holding, the Mallory holding nor any other case would warrant excluding Holman's testimony. The fact that the source of evidence is "tainted" by violation of constitutional or statutory provisions has not precluded the use of that evidence in every circumstance. See Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). Compare Lockley v. United States, 106 U.S.App. D.C. 163, 166, 270 F.2d 915, 918 (1959) (dissenting opinion); see also Barkley v. United States, 116 U.S.App.D.C. ___, 323 F.2d 804, p. 805 (1963) n. 1.

Here no confessions or utterances of the appellants were used against them; tangible evidence obtained from appellants, such as the victim's watch, was suppressed along with the confessions. But a witness is not an inanimate object which like contraband narcotics, a pistol or stolen goods, "speak for themselves." The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.² The uniqueness of this human process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence.³

We dealt with this problem recently in a different factual setting in which we rejected the very "fruit" type argument made by appellants here. In Payne v. United States, supra, Judge Washington, speaking for a unanimous court, said:

"In this case appellant\'s lengthy detention produced two things — Warren\'s identification of Payne at a lineup, and Payne\'s admission of guilt. The latter, the admission, was excluded from evidence by the

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