United States v. Hammonds, 22744.

• Decision Date: 30 March 1970
• Docket Number: No. 22744.,22744.
• Citation: 138 US App. DC 166,425 F.2d 597
• Parties: UNITED STATES of America v. Charles HAMMONDS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

138 US App. DC 166, 425 F.2d 597 (1970)

UNITED STATES of America v. Charles HAMMONDS, Appellant.

No. 22744.

United States Court of Appeals, District of Columbia Circuit.

Argued January 16, 1970.

Decided March 30, 1970.

Mr. J. Laurent Scharff, Washington, D. C. (appointed by this court), for appellant.

Mr. Warren R. King, Asst. U. S. Atty., with whom Mr. Thomas A. Flannery, U. S. Atty., and Mr. John A. Terry and Mr. Richard A. Hibey, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, TAMM, Circuit Judge, and JAMESON^*, Senior District Judge.

JAMESON, District Judge.

Following conviction in a jury trial, appellant was sentenced to imprisonment for a term of five to fifteen years for first degree burglary, one to three years for assault with a dangerous weapon and two to six years for assault on a member of the police force with a dangerous weapon,¹ all sentences to run concurrently. This appeal followed.

The Government's case may be summarized as follows: Between 9:00 and 9:45 P.M., on April 26, 1968, appellant was discovered in a second floor apartment occupied by Mrs. Mamie Bellinger and her six children. Her eight year old son, who was in the kitchen, called Mrs. Bellinger's attention to a "foot up on the bed" in an adjoining double bedroom. Mrs. Bellinger looked into the bedroom and "saw a man under the bed." After calling to him and receiving no response, she took her children downstairs to the apartment of her brother-in-law, Morgan Elmore, who was the owner of the house.

Elmore immediately rushed upstairs and as he entered the bedroom observed appellant "getting out from under the bed." Elmore asked appellant his name and why he was there. Appellant did not respond but moved toward the bedroom door, where he started "running at a fast speed, and then on down the stairs", and out of the front door, with Elmore in pursuit.

Elmore continued the chase after appellant left the house. When Elmore attempted to grab him, appellant struck at Elmore twice with a butcher knife, later identified as belonging to Mrs. Bellinger. Elmore was able to leap back and avoid injury. He continued to pursue appellant and observed appellant leap a fence and go under a porch.

Shortly thereafter a police squad car arrived. Two uniformed officers were in the car. They were informed by Elmore of what had transpired. The officers took a dog from their car, and the dog discovered appellant under the porch. While one of the officers, with his service revolver drawn, was searching Hammonds, appellant swung around, knocking the revolver to the ground and inflicting cuts with a knife on the officer's wrist. Following a scuffle, appellant was handcuffed and placed under arrest.

Appellant, a 31 year old laborer, was the sole witness for the defense. He testifed that the evening before the arrest he had worked at the Sheraton-Hilton Hotel, sic, taking the place of a friend. He finished work at 2:00 A.M. and slept from 4:00 to 8:00 A.M. About 8:30 A.M. he received $13.00 from the friend for the night's work. He then began drinking beer and wine at a bar and later purchased whiskey from a liquor store. He testified that during the day he drank the equal of about a fifth of whiskey, and had nothing to eat, and that he had "fifty-some" cents when he was arrested. In response to a question concerning his whereabouts during April 26, he testified: "Mostly mingled around Seventh Street, all the time, and the last I remember I was on Seventh Street, the last I recall, the last incident before remembering being chased out of this house, being pursued by a man."² Appellant's testimony regarding the events at the time of his arrest in many respects differed significantly from that of the officers and Elmore.³

Appellant contends that (1) he was convicted of burglary upon insufficient evidence in that the jury could only speculate on (a) whether he entered the dwelling with specific intent to steal, and (b) on whether any person was in the house at the time he entered, and (2) he was denied effective assistance of counsel, particularly in counsel's closing argument.

The first count of the indictment charges that, "On or about April 26, 1968, within the District of Columbia, Charles Hammonds entered the dwelling of Morgan Elmore, while the said Morgan Elmore was present in the said dwelling, with intent to steal property of another."

First degree burglary is defined by Title 22 D.C.Code Section 1801 as follows:

"(a) Whoever shall, either in the nighttime or in the daytime, break and enter, or enter without breaking, any dwelling, or room used as a sleeping apartment in any building, with intent to break and carry away any part thereof, or any fixture or other thing attached to or connected thereto or to commit any criminal offense, shall, if any person is in any part of such dwelling or sleeping apartment at the time of such breaking and entering, or entering without breaking, be guilty of burglary in the first degree. * * *" (Emphasis supplied).

Subsection (b) defines second degree burglary:

"(b) Except as provided in subsection (a) of this section, whoever shall, either in the night or in the daytime, break and enter, or enter without breaking, any dwelling, * * * or other building or any apartment or room, whether at the time occupied or not, * * * with intent to break and carry away any part thereof or any fixture or other thing attached to or connected with the same, or to commit any criminal offense, shall be guilty of burglary in the second degree." (Emphasis supplied).

It is clear that between 9:00 and 9:45 P.M. on April 26, 1968, appellant was discovered in the Elmore dwelling under a bed in the Bellinger's apartment. Obviously he had no legitimate purpose in being there. When he was apprehended shortly after running from the Elmore premises he had in his possession a butcher knife which belonged to Mrs. Bellinger⁴ and which had been in her kitchen the day appellant entered her apartment.

It does not appear from the testimony when appellant obtained the knife. While he denied having the knife, both Elmore and the police officers testifed that he had it in his possession when he was apprehended. We conclude that the jury could properly find that appellant entered the premises with the intent to steal. Viewing the evidence in the light most favorable to the Government, we can not say as a matter of law that the evidence was insufficient to support a conviction for burglary in the second degree.

It is clear from the statute that a person is guilty of burglary in the first degree only "if any person is in any part of such dwelling or sleeping apartment at the time of such breaking and entering, or entering without breaking."⁵ There is no evidence to show when appellant entered the Elmore premises. Nor is there evidence to show that either Elmore or the Bellingers were present when appellant entered the premises. All were present when he was discovered. There is no evidence concerning the times either Elmore or the Bellingers may have left or entered the premises prior to the discovery.

In answer to the question: "Now, directing your attention, Mrs. Bellinger, to the evening of April 26, 1968, approximately 9:00 or 9:45 P.M., were you home on that evening?", Mrs. Bellinger answered, "Yes, I was." The Government argues that it is fair to infer from this answer that Mrs. Bellinger was home "for sometime earlier in the evening as well" and that it is unlikely appellant "could have been present too long a period without being discovered by Mrs. Bellinger." This contention enters the realm of surmise and conjecture. Perhaps it could be argued more plausibly that since no one observed appellant entering the premises they were probably absent when he entered and discovered him upon their return. If the Government had evidence that either Elmore⁶ or the Bellingers were in the dwelling for a substantial period of time prior to discovering appellant's presence, that evidence should have been presented.

The Government has failed to sustain its burden of proving that either Elmore or the Bellingers were present in the house at the time of entry. The evidence is insufficient to sustain a conviction for first-degree burglary.⁷

From a review of the entire record we conclude that there is merit in appellant's second contention that he was denied effective assistance of counsel, and that the case accordingly must be remanded for a new trial on all counts, i. e., second-degree burglary, assault with a dangerous weapon, and assault on a member of the police force with a dangerous weapon. Prior decisions of this court establish guidelines for resolving a claim of ineffective assistance of counsel. These rules will be summarized briefly as a background for determining the factual basis of appellant's claim.

At the outset we recognize that cases involving ineffective assistance of counsel "raise questions of extreme difficulty in the administration of justice." Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14, 15 (1945).⁸ "The burden on the Appellant to establish his claim of ineffective assistance of counsel is heavy. * * * The question * * * is whether his representation was so ineffective that Appellant was denied a fair trial." Harried v. United States, 128 U.S.App.D.C. 330, 389 F.2d 281, 284-285 (1967). However, it requires a less "powerful showing of inadequacy" to sustain appellant's burden on direct appeal than is required on collateral attack. Bruce v. United States, 126 U.S. App.D.C. 336, 340, 379 F.2d 113, 117 (1967).

The Sixth Amendment of the Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence." We are thus concerned with a constitutional guarantee, not merely a procedural formality. While the word "effective" does not appear in the Constitution itself, it was held in Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct....