United States v. Davis, 6878.
| Decision Date | 10 January 1975 |
| Docket Number | No. 6878.,6878. |
| Citation | 330 A.2d 751 |
| Parties | UNITED STATES, Appellant, v. Wayman B. DAVIS, Appellee. |
| Court | D.C. Court of Appeals |
Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Richard S. Shine, and Richard S. Vermeire, Asst. U. S. Attys., were on the brief for appellant.
Rufus G. King, III, Washington, D. C., appointed by this court, was on the brief on behalf of appellee.
Before FICKLING, GALLAGHER and HARRIS, Associate Judges.
This case was handled by three successive trial judges at intervals over a period of nearly five months. The first judge presided over a preliminary hearing. A police officer then gave hearsay testimony directed to the question of probable cause. The court denied defense counsel's request to compel testimony by the complaining witness. At a later status hearing before a second trial judge, a different defense counsel asked that another preliminary hearing be held, again seeking to have the complaining witness compelled to testify. The court concluded that the earlier ruling as to the possible pretrial testimony of that witness was in effect the law of the case, and denied the request. Between that date and the trial date, the complaining witness became a murder victim. When the matter came on for trial before the third judge, a motion was made to dismiss the relevant counts of the indictment. That motion was based solely on the absence of the complaining witness' testimony at the preliminary hearing. The third judge concluded that both of the two prior judges had erred, and granted the motion to dismiss. We reverse.
It is necessary to set forth the development of the case in some detail. On March 31, 1972, Helenea Cummings executed an affidavit in support of a Superior Court arrest warrant. The substantive portion thereof read as follows:
I was a witness to an offense for which Wayman Davis was arrested and charged on January 28, 1972 (case # 4950-72). As I came to work on March 30, 1972, Wayman Davis threw bricks at me, swung a butcher knife at me which stuck in the door of the restaurant where I work. He told me he had "killed one bitch and didn't mind killing another." I ran in the restaurant and called the police, but Wayman Davis had run away when they arrived. I have since learned that Wayman Davis was convicted for killing a woman in 1963, and I am afraid for my life. Other than being a witness in the previous arrest in January, 1972, Mr. Davis is a stranger to me.
The case began with a charge of assault with a dangerous weapon (knife). Later, charges of assault with a dangerous weapon (brick), carrying a dangerous weapon (knife), and obstruction of justice were added. A preliminary hearing was held on April 6, 1972. The arresting officer testified. He went considerably beyond the succinct assertions in the affidavit; it was obvious that he had discussed the case at some length with Miss Cummings. He testified that appellee had verbally abused and threatened Miss Cummings on numerous occasions, and had said that he would kill her if she testified against him. The officer stated that appellee had stabbed at Miss Cummings with the knife on March 30, but missed her as she was pulled to safety by a third person. All of the officer's testimony was hearsay.1
On cross-examination, defense counsel asked a number of questions which went beyond the issue of probable cause and entered the realm of discovery. Most were objected to; the objections were sustained.2 Defense counsel advised the court that Miss Cummings happened to be in the courthouse at that time (on the earlier case), and asked that she be required to testify. He stated:
I would ask that the complaining witness in this case be called for the purpose of determining to what extent she knew the defendant prior to this incident and prior to the other incident in which he was arrested.
The trial court properly concluded that such testimony would not tend to negate probable cause, and said: The request to compel the testimony of Miss Cummings accordingly was denied.3
Four days later, a grand jury returned a seven-count indictment against Davis. The first three counts related to the January 28, 1972, incident to which Miss Cummings was a witness; the last four related to the alleged efforts of appellee on March 30, 1972, to keep her from testifying against him.
Between the return of the indictment in April of 1972 and the status hearing scheduled for June 23, 1972, Davis was incarcerated, being unable to post the bond which was set after his alleged assault on Miss Cummings. During that period he filed several pro se motions, one of which sought habeas corpus relief based on the fact that the original probable cause determination at the preliminary hearing was predicated solely on hearsay testimony.
The status hearing was held before a second judge. By then, Davis was represented by different appointed counsel.4 The new lawyer candidly acknowledged that the intervening indictment — which constituted an independent probable cause determination — mooted any question as to the sufficiency of the preliminary hearing.5 Counsel stated he would prefer to withdraw the pro se habeas corpus petition, "but my client, for the record, disagrees violently." Counsel then accommodated his client by making a rather pro forma request for a new preliminary hearing at which the complaining witness would be required to testify. That request and the habeas corpus petition were denied. The court stated: "That particular matter, Mr. Davis, the court holds . . . has been litigated at considerable length and passed upon in this case."
Ten days later Miss Cummings was murdered, in an incident which no one has suggested had any connection with this case. (Appellee remained incarcerated.)
On August 1, 1972, appellee was tried on the severed three counts of the indictment which related to the earlier incident which had been witnessed by Miss Cummings. The trial was presided over by a third judge. At the conclusion of the government's case, the court granted a motion for judgments of acquittal on the first two counts, and the government dismissed the third.
It was then nearly four months after the preliminary hearing, and the time for filing motions had long since expired. See Super.Ct.Cr.R. 12(b) (2) and 47-1(c). Davis still had been unable to post bond, and the trial court afforded defense counsel until August 11 to file an "appropriate motion in writing." Rather than filing a motion for review of the conditions of release, however, defense counsel filed a "Motion To Dismiss Indictment." It was based exclusively on the fact that the deceased complaining witness had not testified at the preliminary hearing. There was no allegation that the indictment was defective.6
A hearing was held on the motion to dismiss on August 25, 1972. The court expressed the belief that the first judge, who had handled the preliminary hearing, . . . seriously abused his discretion in refusing to permit the defendant, based on the proffer, to put Miss Cummings . . . on the witness stand under oath to testify. I think it was badly wrong to have proceeded in that fashion and . . . I am strongly inclined to rule that that was a serious abuse of discretion.
The court did express some concern that the motion to dismiss the remaining counts of the indictment was filed more than four months after the preliminary hearing ruling on which it was based. The third judge then made clear his erroneous belief that the basic purpose of a preliminary hearing is to afford a defendant an opportunity to "pin down" a complaining witness through cross-examination.7 He went on to consider the conclusion of the second judge (at the status hearing) that the preliminary hearing judge's original ruling had settled the question for this case. The third judge stated that such a conclusion had been
. . . just wrong. But in facing the situation the way it is now, there is no way you can get an appellate resolution of this case, except that I dismiss the indictment.
The motion to dismiss was granted. The court then gave part of its reasoning:
I think any Judge in this Court, upon proper motion, upon proper application and allegation where it appears that a situation like this exists, has the authority . . . to order an additional preliminary hearing. There is no reason not to. It is perfectly within the discretion of the Court, given that situation, to do that.
With respect to motions to suppress, the original ruling thereon becomes the law of the case and is binding on other trial court judges who preside over later phases of the same proceeding (absent significant new facts a defendant's prior unawareness of grounds for such a motion). See, e. g., United States v. Dockery, D.C.App., 294 A.2d 158, 163 (1972); Jenkins v. United States, D.C.App., 284 A.2d 460, 463-464 (1971); D.C.Code 1973, § 23-104(a)(2); cf. Walker v. United States, D.C.App., 304 A.2d 290, 291, cert. denied, 414 U.S. 1007, 94 S.Ct. 368, 38 L. Ed.2d 245 (1973). Most other pretrial rulings, however, are interlocutory and lack the degree of finality required for an application of the "law of the case" rule. See Wilburn v. Wilburn, D.C.App., 192 A. 2d 797, 798 n. 1 (1963); Washington v. District of Columbia, D.C.Mun.App., 152 A.2d 191, 192 (1959).
In District of Columbia v. Faison, D.C. App., 278 A.2d 688 (1971), the complaining witness in a paternity action testified at a preliminary hearing but died before trial. In a pretrial ruling, one...
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