United States v. Shields, 11190.

• Decision Date: 12 November 1976
• Docket Number: No. 11190.,11190.
• Citation: 366 A.2d 454
• Parties: UNITED STATES, Appellant, v. Morris J. SHIELDS, Appellee.
• Court: D.C. Court of Appeals

Page 454

366 A.2d 454

UNITED STATES, Appellant, v. Morris J. SHIELDS, Appellee.

No. 11190.

District of Columbia Court of Appeals.

November 12, 1976.

Robert E. Clem, Washington, D.C., was on the motion for appellee.

Earl J. Silbert, U. S. Atty., John A. Terry and Daniel A. DeRose, Asst. U. S. Attys., Washington, D.C., were on the opposition to motion to dismiss for appellant.

Before NEBEKER, Associate Judge, REILLY, Chief Judge, Retired, and PAIR, Associate Judge, Retired, in chambers.

NEBEKER, Associate Judge:

Appellee moves to dismiss this appeal brought by the government pursuant to D. C.Code 1973, § 23-104(a) (1), from, a pretrial evidentiary ruling in a criminal case. We hold that the ruling is not appealable and dismiss the appeal.

Appellee was charged in a four-count indictment with one count of rape while armed, two counts of rape, and one count of assault with a dangerous weapon. According to the indictment, defendant was charged with raping two different women on different days — the incidents were about a month apart — but in the same apartment building and under similar circumstances. Appellee moved for severance of counts one through three (relating to the first alleged rape) from count four (relating to the second alleged rape). The court granted the motion over the government's opposition. Immediately following this ruling, the government asked the court if, in separate trials, the evidence of each offense would be admissible in the trial of the other. The court ruled that the evidence of one offense would not be admissible in the trial of the other to show a "common scheme or plan", the theory advanced by the government. A continuance of the scheduled trial was granted so that an appeal could be taken from this ruling.

Section 23-104(a) (1), a part of the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L.No. 91-358, 84 Stat. 473, was enacted to ensure the government's right to appeal certain pretrial evidentiary determinations. That section states:

The United States or the District of Columbia may appeal an order, entered before the trial of a person charged with a criminal offense, which directs the return of seized property, suppresses evidence, or otherwise denies the prosecutor the use of evidence at trial, if the United States attorney or the Corporation Counsel conducting the prosecution for such violation certifies to the judge who granted such motion that the appeal is not taken for purpose of delay and the evidence is a substantial proof of the charge pending against the defendant. [Emphasis supplied.]

The emphasized language was the only change which the 1970 Act made in the previous provision respecting prosecution appeals — D.C.Code 1969 Supp., § 23-105(b).

The government contends that Congress in the 1970 amendments intended to allow the government to appeal from all pretrial evidentiary rulings. This is a plausible argument if one confines the analysis to the very broad phrase added in 1970. We cannot agree, however, that Congress intended to expand the right of the government to appeal from the granting of a suppression motion to an absolute right of appeal from any pretrial ruling on such issues as the relevancy or prejudice of evidence or testimony to be offered at trial.

In approaching this question, we must keep in mind that although the government's right to appeal has been enlarged in recent years,¹ the guarded notion that appeals by the government are unusual and not favored has not been abandoned. See Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957); United States v. Greely, 134 U.S.App.D.C. 196, 413 F.2d 1103 (1969). Furthermore, the Supreme Court has stated as a general policy that appellate review should not occur, except in narrowly defined circumstances, until a truly final judgment has been rendered. Will v. United States, supra; Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962).

With this premise in mind, we turn to the legislative history of § 23-104(a) (1) as an indication of the scope of that section. The House Report, H.R.Rep.No.907, 91st Cong., 2d Sess. (1970) (hereinafter House Report), of the Committee on the District of Columbia specifically mentions the language added to § 23-104(a)(1) by Pub.L. No. 91-358. It states at 111:

Section 23-104(a) (1) substantially reenacts existing section 23-105(b) of the District of Columbia Code, relating to the prosecution's rights to appeal pretrial ruling. Such a provision was also enacted for the federal courts as part of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. § 3731). The only change is the addition of the clause permitting appeal from a pretrial order which "denies the prosecutor the use of evidence at trial," a clause necessary to overcome the excessively narrow interpretation accorded the existing statute in United States v. Greely, 134 U.S. App.D.C. 196, 413 F.2d 1103 (1969) (denial of motion to reopen suppression hearing).

The Greely case was a government appeal from the trial court's denial of its motion to reopen the hearing of a suppression motion. The government had petitioned for reopening upon the allegation of newly discovered evidence. The trial court denied the motion and the government noted an appeal under 18 U.S.C. § 3731 (1970), the language of which is substantially the same as that of the 1969 provision in § 23-105(b), supra. Section 3731 provides for a government appeal "[f]rom an order, granting a motion for return of seized property or a motion to suppress evidence, made before the trial . . ." The court in Greely held that it was without jurisdiction to hear the appeal since the appeal was not literally from a motion to suppress, but rather from the denial of a motion to reopen the suppression hearing.

Thus, it might be concluded that the purpose of the additional language in § 23-104(a) (1) was solely to overcome the effect of the Greely holding, and cannot be extended to cover the evidentiary determination made in the instant case. However, we need not turn our decision on that rationale, for, when the nature of the trial court's action is analyzed, it can be seen that the fundamental prerequisite to appealable action is absent. Section 23-104(a)(1) permits an appeal from "an order". Significantly, other subsections of § 23-104 which were added to expand the government's right to appeal (in the 1970 Act) used a different characterization of appealable action. Sections 23-104...