United States v. Washington

• Decision Date: 28 December 1970
• Docket Number: No. 23059.,23059.
• Citation: 447 F.2d 308,144 US App. DC 338
• Parties: UNITED STATES of America v. Samuel M. WASHINGTON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

144 US App. DC 338, 447 F.2d 308 (1970)

UNITED STATES of America v. Samuel M. WASHINGTON, Appellant.

No. 23059.

United States Court of Appeals, District of Columbia Circuit.

Argued September 16, 1970.

Decided December 28, 1970.

Mr. Willard M. Hanger, Washington, D. C. (appointed by this court), for appellant.

Mr. William S. Block, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and Nicholas S. Nunzio, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and MacKINNON, Circuit Judge, and CHRISTENSEN,^* U. S. District Judge, District of Utah.

MacKINNON, Circuit Judge:

At about 10:45 A.M. at the intersection of 11th and M Streets, N.W., Mrs. Pearl Cunningham, a 67-year-old woman, had her purse snatched by a person she had viewed for several minutes as she approached the intersection on her way to do some shopping at a Safeway store. The victim testified that her purse at the time contained a $5 bill, that lighting conditions were good, that she had a "good look" at the person who snatched her pocketbook, that the snatcher was short, wore a green jacket, dark trousers, hush-puppy shoes, was bareheaded and had long hair. Following the snatching, Mrs. Cunningham screamed, the police came in a few minutes and she described her assailant to them. The description was overheard by Officer Lounderman who left immediately in a squad car in search of the suspect. A few minutes thereafter when Lounderman was driving through a nearby alley near 10th and M Streets, N.W., he observed a Negro male with dark brown trousers and a heavy bush haircut running toward the car he was driving. Upon seeing the automobile this man turned at right angles and scaled an adjacent fence. At that time Officer Lounderman noted that the man who was running matched the description given by Mrs. Cunningham in that he had "real heavy hair," brown looking shoes and he thought a green jacket and when the man was scaling the fence he observed he had a lady's black pocketbook in his hand. On the other side of the fence Lounderman arrested Washington, and Lounderman later testified he was the same man he saw running with the lady's pocketbook on the other side of the fence and that a search of Washington's person disclosed a $5 bill. A bystander produced a woman's pocketbook he said he had found in the alley and delivered it to Lounderman. It contained a number of Mrs. Cunningham's personal belongings except a $5 bill she later testified was missing. Immediately after his arrest, Officer Lounderman took Washington back to the scene of the purse snatching where he was identified by Mrs. Cunningham who also testified that the police took a $5 bill out of appellant's pocket at that time.

At the trial Washington attempted to account for the $5 bill by contending it was what was left over from $25 he had borrowed that morning from his employer to make some purchases, but on cross-examination his credibility was impeached by the Government when Washington testified that his alleged purchases more than exhausted the money he allegedly obtained by the loan. Thus, he failed to account for the $5.

Washington also testified with respect to the type of haircut he had at the time of his arrest as follows:

Q And what type of haircut did you have at that time?

A The same way I got it now.

Q And that is?

A It was close, close haircut.

Q Now, do you know what an African bush haircut is?

A Yes.

Q Have you ever had occasion to let your hair grow in that fashion to have an African bush haircut?

A No, sir.

The purpose of this testimony was to deny that on the day of his arrest he met the description of the purse snatcher given by Mrs. Cunningham as having "a lot of hair. His hair was long at that time." In reply to this the Government introduced a picture of Washington taken on the date of his arrest which they contended showed him with long hair cut in what was termed an African bush haircut. This issue also seemed to go against Washington.

The motion for judgment of acquittal was merely perfunctory as it was admitted there was sufficient evidence to go to the jury.

In its instructions to the jury the trial court had given a modified Allen charge but at 4:30 P.M. the jury reported they were a "hung jury." They were accordingly called back to the courtroom and given a form of the full Allen charge. To this appellant's counsel objected that the jury was getting the substance of the Allen charge on "two different occasions" since the court had already given a "somewhat modified version of the Allen charge before this jury went out. It is my understanding this would have been the proper time to give the Allen charge, rather than at this time, when the jury went out." Shortly thereafter at 5 P.M., the jury reported a verdict of guilty.

I

First, appellant contends that prejudicial error justifying a new trial occurred by reason of a delay of 8½ months after the trial of the court reporter in producing a transcript of the trial proceedings. The trial was completed on March 10, 1969, the notice of appeal was filed on April 11, 1969, the transcript was ordered on April 15th and filed on January 5, 1970. A supplemental transcript covering the instructions and proceedings after the jury announced they were hung was filed on May 25, 1970. It goes without saying that court reporters should "promptly transcribe the original records of the requested parts of the proceedings,"¹ but it does not follow that every failure to comply with this statutory direction is cause to set aside the judgment of conviction entered after a jury trial.

Before such result will occur there must be a showing that the delay caused substantial prejudice to the appellant. There is no such showing here that the resulting delay in any way affected the trial proceedings or appellant's substantial rights in any other way. Under such circumstances where appellant has not yet served his minimum sentence,² where it does not appear that any prejudice resulted to him in presenting his argument on appeal or in any other manner, and where we decide that his conviction was otherwise valid, we consider the issue to be controlled by our decision in Blunt v. United States, 131 U.S.App.D.C. 306, 313, 404 F.2d 1283, 1290 (1968), cert. denied, 394 U.S. 909, 89 S.Ct. 1021, 21 L.Ed.2d 221 (1969)³ which held that under closely similar circumstances the delay was not prejudicial.

We are not unmindful of the heavy burden placed on court reporters by the great demand for trial transcripts and of the delays occasioned thereby. Since we are also aware from the cases that have been coming before this court that our trial courts are taking proper steps to alleviate the situation and that in particular cases the court has brought proceedings calculated to expedite the production of transcripts, we do not press the point of which we know the trial court is fully aware.

II

Appellant next attacks the propriety of giving a full Allen charge after a modified version of that instruction had previously been given and because the charge was given following a long period of deliberation when at 4:30 P.M. the jury reported itself deadlocked. We see nothing coercive in giving the charge in such circumstances. In Fulwood,⁴ we upheld a similar charge where a modified version had been given in the original charge⁵ and the jury had reported itself unable to agree. And since the approval of the Allen charge is a matter of long standing with this court and the Supreme Court,⁶ we find nothing in the circumstances that it was given late in the day to a hung jury that would create error. In fact, that seems an ideal time to give the charge.

III

Finally, appellant contends that he was improperly prejudiced by the admission of the on-the-scene identification of him by the victim within less than 15 minutes after the crime.⁷ He argues that a lineup should have been held and that the trial court should have acceded to his request for a pretrial suppression hearing. However, in Russell v. United States, 133 U.S.App. D.C. 77, 408 F.2d 1280, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969), we upheld the right to conduct on-the-scene identifications in substantially similar circumstances and we see nothing in the fact that the arrest and confrontation here occurred at about 10:45 A.M. on a week day, whereas in Russell they occurred at 5 A.M., to require a different conclusion. Part of the underlying rationale that supports our decision in Russell is that the quick confrontation permits the police to determine whether they have the actual offender and if not to continue their search for him and thus permit the prompt release of an innocent person. The ordinary on-the-scene confrontation also has great merit in that it operates at a time when the events and faces are fresh in mind and the accused ordinarily has no opportunity to change his clothing or personal appearance. All this is conducive to a high degree of accuracy in a form of identification that can at best be difficult when memories have been blurred by the passage of time and alleged suspects drastically change their appearance. Certainly, identifications conducted on the scene may contain certain elements of suggestiveness but this point can be argued to the jury. On the record here we find no undue suggestiveness in the confrontation and note the items of corroboration that support the identification. These include the facts (1) that the victim had an excellent opportunity to observe appellant before the crime and during its commission, (2) that she furnished the police with a complete and accurate description of appellant and his clothing,⁸ (3) that he was observed carrying her pocketbook by the policeman who arrested him, (4) that he was fleeing when arrested, (5) that when arrested he had a $5 bill on his person that he could not satisfactorily account for (the victim testified her pocketbook had a...