U.S. v. Hinton
| Decision Date | 13 May 1980 |
| Docket Number | No. 76-1014,76-1014 |
| Citation | 203 U.S.App.D.C. 187,631 F.2d 769 |
| Parties | UNITED STATES of America v. Alan HINTON, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Criminal 75-365).
Martin D. Minsker, Washington, D. C. (Appointed by this Court) for appellant.
Douglas J. Behr, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, William D. Pease and Roger M. Adelman, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.
Before WRIGHT, Chief Judge, BAZELON, Senior Circuit Judge and ROBINSON, Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge BAZELON.
Appellant, Alan Hinton, was convicted after a jury trial of various offenses committed in connection with an armed bank robbery. 1 At a suppression hearing on the morning of trial, the government for the first time presented Hinton's trial counsel with a mass of Jencks Act materials. 2 Hinton's counsel did not request a recess to study these documents. On appeal, Hinton argues that his lawyer's failure to use these materials in cross-examining government witnesses at the hearing constitutes ineffective assistance of counsel. 3
After submission of this appeal, we remanded the record to develop pertinent factual findings. 4 In a supplemental proceeding the district court found that, although appellant's trial counsel sought to read the relevant Jencks Act materials while the suppression hearing was in progress, counsel's decision not to use them was rushed to the point where the court retained "substantial doubt as to whether adequate time existed for . . . an informed decision." The district court also found that appellant had been "prejudiced" by his counsel's failure to bring the Jencks Act material to its attention during the hearing. 5
The en banc opinions of this court in United States v. Decoster (Decoster III) 6 and United States v. Wood (Wood) 7 were announced after the district court considered this case upon remand. It is now clear that for relief on a claim of ineffective assistance of counsel an affirmative answer is required to the following three questions:
(1) Has there been a substantial breach in the duty owed to the defendant by competent counsel?
(2) Has the defendant demonstrated a likelihood that counsel's inadequacy prejudiced his defense?
(3) Is the government unable to prove beyond a reasonable doubt that the constitutional deficiencies of counsel's representation were harmless?
In short, once the defendant has demonstrated a denial of effective assistance resulting in "likely prejudice," the government has an opportunity to prove beyond a reasonable doubt that counsel's deficiencies were harmless.
At the proceeding upon remand in this case, both the trial judge and counsel acted without the benefit of the Decoster III and Wood opinions. None of the parties was aware of the defendant's burden in demonstrating prejudice ("likely prejudice" to his defense), and it is not clear that the parties were aware that once a constitutional violation had been established, the government could attempt to avoid reversal by establishing beyond reasonable doubt that counsel's inadequacies were harmless. Further, it is uncertain how the district court's finding of "prejudice" should be interpreted in light of the subsequent Decoster III test. Therefore, based upon the findings of the district court presently before us, we find that appellant was deprived of the informed and deliberate judgment of counsel. However, we remand the record for the limited purpose of allowing the court and the parties to address in light of Decoster III and Wood the extent of the prejudice to the defendant's case caused by this inadequacy.
Sometime between 8:00 a. m. and 9:30 a. m. on March 18, 1975, an aqua-colored 1963 Chevrolet was taken without permission from a lot behind a garage at 66 Hanover Place, where mechanic Isaac Thomas Vaughn parked customers' cars waiting to be repaired. About 9:15 that same morning, four men wearing ski masks entered and robbed the American Security and Trust Branch at 2300 Calvert Street. Two robbers vaulted the tellers' counter and began emptying the cash drawers. The other two stationed themselves in the lobby one (who wielded a sawed-off shotgun) by the desk of Ms. Ellen Hammeke, a customer service representative positioned near the bank's front door; the other (who carried a handgun) beside the desk of Ms. Beverly Emamali, also a customer service representative. Within one or two minutes of entering the bank, 8 the robbers had ordered everyone present to lie on the floor. After taking $6927, the robbers fled through the rear door. Three bank employees heard one departing robber shout, "Come on$ Come on, Blue$" 9 The robbery lasted 4 to 10 minutes. 10
Several employees of J. M. Chambers and Co., which occupied the offices directly above the bank, had become suspicious when they heard loud noises below. Looking out the office's rear window, Ms. Bernice Falwell observed an aqua-colored car with flashing lights in the bank's parking lot and recorded its license number. The same car, which proved to be the one stolen from Vaughn's repair lot, was found later that morning at 3220 17th Street with a sawed-off shotgun in the rear seat.
On the day of the robbery, police and FBI investigators interviewed three witnesses who would later identify Hinton at trial as the robber who wielded the shotgun. Notes made by Officer Joseph Kaclik of the Police Department quote Ellen Hammeke as describing one suspect as a Trial Tr. 112. His notes, which he thought reflected "all of the investigation that was done by the Police Department on the 18th," id. at 113-14, recorded no descriptions of this robber given by Ms. Emamali or by Mr. Hugh Smith, a teller who was behind the counter during the robbery. Id.
An FBI report, a Form 302, reports an interview with Ms. Emamali on the same day. It gives a fairly detailed description of the handgun-toting robber who stood nearest her, 11 but records no description for the other robbers: "Mrs. EMAMALI stated that she could not provide any other description . . . due to the fact that she was on the floor and only got a slight glance of unknown subjects two, three, and four." A second form 302 reports an interview with teller Hugh Smith. It provides a description in some detail given by Smith of the two robbers who vaulted the counter. 12 As for the two robbers stationed in the bank lobby, however, the report states only: "Negro males, nothing further." One of these men, according to Smith, shouted, 13
On March 25, a week after the robbery and interviews, the police received information that appellant Hinton was one of the bank robbers. 14 After securing a black and white photograph of appellant, Officer Kaclik spent approximately 3 hours that same afternoon and the next morning assembling a photo array with additional photographs from police files. Officer Kaclik then took the array consisting of eight photographs to the bank, where Mr. Smith, Ms. Emamali and Ms. Hammeke were called into the bank manager's office individually and asked if they could identify any of the bank robbers from the array. Each employee selected the photo of Alan Hinton as the robber with the shotgun. 15
The next day Mr. Hinton was arrested in front of his home at 39 Hanover Place. He was wearing an overcoat and shoes similar to the coat and shoes worn by the shotgun-toting robber shown in the bank surveillance photographs. 16 It also developed that Mr. Vaughn, from whose nearby lot the getaway car had been stolen, knew Alan Hinton by the name of "Boo."
Three weeks later, on April 17, 1975, Mr. Hinton appeared in a lineup along with seven other black males, all of whom wore ski masks. The three bank employees were again asked individually if they could identify anyone in the lineup. Ms. Emamali and Ms. Hammeke selected Alan Hinton; Mr. Smith selected a different person. 17
On June 13, 1975, defense counsel filed a motion to suppress the identification testimony of these three witnesses. The suppression hearing was held on September 17, 1975, on the morning before trial. At the beginning of the hearing, the prosecutor gave to the defendant's trial counsel Jencks Act materials consisting of approximately sixty loose pages, in addition to bound transcripts of the preliminary hearing and the grand jury testimony of Detective Joseph Kaclik and bank officer Paul R. O'Connell. With the exception of the preliminary hearing transcript, counsel had not received any of the Jencks material prior to that time. FFR at 3. The FBI Form 302's were included in this Jencks Act material, 18 but in turning over the material the government's attorney made no mention that they contained information relevant to the three identification witnesses who were to testify. 19
Since appellant's trial counsel did not request a recess to study these documents, the district court immediately heard the testimony of the three witnesses, which, in the case of Ms. Emamali and Mr. Smith, differed in significant respects from the 302's. 20
Ms. Emamali testified that a robber with a silver handgun positioned himself beside her desk; the shotgun robber stood 15 feet away by Ellen Hammeke's desk. Trial Tr. 39-42. When the man guarding Ms. Hammeke ordered her on to the floor, Ms. Emamali also lay down "without anybody telling (her) anything." Id. at 41. From this moment on, she closed her eyes and prayed. Id. at 46-47. Prior to closing her eyes, she observed the shotgun robber for "only a few seconds." Id. at 47. She...
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