U.S. v. James

• Decision Date: 07 April 1977
• Docket Number: No. 76-1432,76-1432
• Citation: 555 F.2d 992,181 U.S.App.D.C. 55
• Parties: , 1 Fed. R. Evid. Serv. 895 UNITED STATES of America v. John R. JAMES, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 992

555 F.2d 992

181 U.S.App.D.C. 55, 1 Fed. R. Evid. Serv. 895

UNITED STATES of America v. John R. JAMES, Jr., Appellant.

No. 76-1432.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 19, 1976.

Decided April 7, 1977.

Edward Riehl ^*, with whom Michael E. Geltner, New York City (appointed by this court) was on the brief, for appellant.

Mary Ellen Abrecht, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Albert H. Turkus and Edward C. McGuire, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before DANAHER, Senior Circuit Judge, and TAMM and ROBINSON, Circuit Judges.

Opinion for the Court filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

John R. James Jr., challenges several evidentiary rulings in the wake of which he was convicted of possessing a controlled substance with intent to distribute. ¹ His effort to exclude heroin seized from his jacket strikes us as misplaced, ² but we agree that the lurid circumstances of his arrest were improperly placed before the jury. ³ Since we cannot characterize this error as harmless, we reverse the conviction and remand the case for a new trial.

I

Application of the law to this case must needs rest on the ramiform and occasionally conflicting evidence adduced at James' trial. ⁴ Testimony by District of Columbia police officers Green and McMasters was substantially as follows. Late on the evening of November 4, 1975, while they were on "old clothes" detail, a passing 1961 Plymouth bearing taxicab markings excited their interest. In their unmarked cruiser, the officers followed the Plymouth until it came to a halt, whereupon they pulled alongside. The officers alighted, as did the Plymouth's two occupants, and one James was perceived as making what was described at trial as "a throw-a-way gesture" ⁵ towards a nearby hedgerow.

James and his companion, Clennon Burke, were asked to and did identify themselves. ⁶ At this point, so the officers testified, James abruptly volunteered that he had no "dope," and in an apparent effort to convince displayed to them the contents of the glove compartment, ash tray and trunk of the Plymouth. Not content with this exhibition, James opened his jacket, then doffed it, but as he did the officers heard it brush the car with the clang of metal on metal. Officer McMasters testified that he asked James whether that signified a gun in the jacket; James replied in the negative and requested the officer to satisfy himself on that score. McMasters stated that he searched the coat and found various tools for narcotics distribution ⁷ but, as these carried no trace of contraband, they were, after some discussion of James' intentions, ⁸ replaced in the jacket. James and Burke went their way on foot.

The officers' suspicions thus alerted, they reboarded their cruiser and embarked, but with doused lights circled back to take up a covert position for surveillance. They said that they then saw James and Burke drop behind the hedgerow and retrieve two silver objects, which James put in his jacket. With this, the officers set off, but as the cruiser approached James removed his jacket, balled it up and, as the officers watched, tucked it under the arm of William Giles, James' elderly uncle, who had suddenly appeared on the scene. The officers immediately addressed Giles, who unhesitatingly surrendered the garment to them just as James and Burke entered the nearby house of James' aunt, Giles' sister. When the bundle unraveled, revealing two tinfoil packets, the officers gave chase, entering the aunt's house only to find that James and Burke had exited at the rear.

Certain particulars of the officers' version were vigorously disputed by James and Burke, both of whom testified. They recalled no mention of narcotics in their meeting with the officers, ⁹ claimed that the car search was permitted only upon demand and contended that no paraphernalia of any kind came to light. James denied any "throw-a-way" motion and both explained that the objects retrieved from the hedge were cigarette packs which, while the police were doubling back, had been tossed by Burke and fumbled by James. ¹⁰ The defense theory was, essentially, that the narcotics paraphernalia taken from James' jacket, as well as a brown powder containing heroin which was found in the tinfoil packets, were "planted" in the jacket after James had given up possession. ¹¹

II

The appropriation of the jacket by the officers and their subsequent examination of its contents occasioned a motion to suppress, ¹² from the failure of which James appeals. He concedes ¹³ that probable cause to search the jacket had matured by the time it was seized but contends that the search was invalid "because the police acted without a warrant." ¹⁴ Thus our question is "whether the police action was reasonable under all the circumstances," ¹⁵ and we have no difficulty in finding it so.

The warrantless search could have been sustained had James been apprehended while still wearing the jacket, ¹⁶ or had James flung it on the pavement. ¹⁷ That the jacket had instead been passed on to Giles, who could have been either a dupe or a confederate, did not alter the need for swift action. In either event the officers, who had observed the transfer of the jacket, had ample grounds for suspecting that it contained evidence "peculiarly vulnerable to speedy and easily accomplished destruction," ¹⁸ and it was at the very least their duty to forestall that possibility. Moreover, seizure of the jacket, easily accomplished as it was, ¹⁹ was far less intrusive than immobilizing Giles until a warrant could be secured. It was the more reasonable in light of James' retreat, since the officers could thereby ascertain readily whether the game was worth the candle ²⁰ and, if so, give chase.

We find no fault with the course of action resulting in the seizure, and its fruits were properly admitted at trial. Had there been no more to this case, the officers' testimony concerning their initial encounter with and observation of James, taken together with the evidence we hold to have been legally seized, would readily have required affirmance of the convictions. Yet the Government did not content itself with that evidentiary presentation, but spread before the jury the debilitating and potentially prejudicial circumstances of James' subsequent arrest. To the consequences of that course of action we now turn.

III

James was arrested in a drug raid on November 20, 1975, sixteen days after the events on which the indictment here was based. A squadron of police officers, confidentially informed that a cadre of supposedly armed citizens were gathering for a narcotics transaction, converged on an apartment, identified themselves, rushed through the door, and recovered a cache of contraband and a brace of weapons. James and another man, described at trial as "wanted by the FBI and U.S. Marshall's (sic ) Office," ²¹ jumped out a third floor window into the arms of police, followed through the window by "a quantity of heroin and other drugs and a pistol." ²² Burke was also apprehended in the raid.

In James' pocket when he was arrested was a slip of paper bearing cryptic notations. ²³ The Government introduced the slip at trial, but did not immediately undertake to explain how, if at all, it was probative of the offense with which James was charged. On cross-examination of Officer McMasters, however, defense counsel adduced from him his interpretation of the notations, ²⁴ which in his estimation detailed a narcotics transaction. ²⁵ When defense counsel asked McMasters whether the symbols "(c)ouldn't mean anything else," he replied that "(t)here were a lot of other circumstances surrounding the receipt of this piece of paper." ²⁶ This exchange was seen by the trial judge as "opening the door" for the prosecution's elicitation on redirect examination of a detailed account of the November 20 raid, which appears in the margin, ²⁷ "because of the fact that the officer was questioned as to the meaning of the slip of paper. . . . He is entitled to take into consideration in making his evaluation of what was on that paper the surrounding circumstances. . . . " ²⁸ Parts of the officer's account were later repeated in rebuttal of James' version of the November 20 raid. ²⁹

James claims that admission of the extensive testimony regarding the circumstances of his arrest was error. This is disputed by the Government, which contends also that, assuming arguendo the theoretical inadmissibility of Officer McMasters' narration, defense counsel "opened the door" to it by his inquiry into the meaning of the note the position to which the trial judge subscribed. ³⁰ Speaking first to that narrower issue, we disagree that McMasters' reportage was invited by defense counsel. Ordinarily, evidence inadmissible to prove the case-in-chief is rendered admissible only if "the defendant himself introduces the evidence or is in some manner estopped from objecting to its use." ³¹ A defendant may not, for instance, deny that he had ever possessed narcotics, or make similarly sweeping claims going "beyond a mere denial of complicity in the crimes of which he was charged", ³² without running the risk that "bad acts" testimony ³³ or even illegally-obtained evidence ³⁴ will be introduced in rebuttal. After all, "(t)he price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him." ³⁵

There is, however, a fine line between trial conduct spreading new vistas before the inquiring eyes of the jury and that which seeks further to explore previously discovered terrain. ³⁶ The defense in this case hewed closely to that line. The writing itself was already in evidence; had counsel solicited from...