Wayne v. United States

Decision Date04 April 1963
Docket NumberNo. 16709.,16709.
Citation318 F.2d 205
PartiesLewis L. WAYNE, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Henry Lincoln Johnson, Jr., Washington, D. C., with whom Mr. Curtis P. Mitchell, Washington, D. C., was on the brief, for appellant.

Mr. Barry I. Fredericks, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker, Asst. U. S. Atty., and Arthur J. McLaughlin, Asst. U. S. Atty., at the time the record was filed, were on the brief, for appellee. Messrs. Nathan J. Paulson and John R. Schmertz, Jr., Asst. U. S. Attys., at the time the record was filed, also entered appearances for appellee.

Before EDGERTON, WASHINGTON and BURGER, Circuit Judges.

Petition for Rehearing En Banc Denied En Banc May 1, 1963.

BURGER, Circuit Judge.

Appellant was indicted on two counts, the first for an attempted abortion terminating in death, and the second for attempted abortion. Tried before a jury, he presented no evidence and was found guilty on only the second count. He was sentenced to imprisonment for a period of 2 to 6 years. The District Judge excluded as evidence certain medications claimed to be means of inducing the abortion under a ruling in a prior trial1 that these items were "fruit" of an unlawful entry due to policy failure to announce the purpose of their entry. Our disposition will require a more complete discussion of this issue at a later point.

The following is a summary of undisputed facts: Jean Dickerson, the deceased victim of an attempted abortion, had absented herself from her regular employment as a school teacher and from her regular place of residence for a week due to an undisclosed "illness." The decedent and her sister called at appellant's residence for the purpose of making arrangements to have an abortion performed on the decedent, who was pregnant and unmarried. They returned the next day carrying $400 in currency. While the decedent's sister was present, appellant's co-defendant Portia Watson, who was granted a severance, made all physical arrangements for the abortion procedures at appellant's request. There was testimony that appellant instructed Portia Watson to "set him up" and that shortly thereafter she reported that she had done so. Appellant's license as a physician had previously been revoked.

The testimony showed that appellant carried a tube of some substance into the room where decedent had been taken and returned stating that she, the "patient," was having "good reactions." Hearing groans from the bedroom soon after this, appellant returned to the bedroom and later emerged saying "Oh my God, I believe she's dead." At this point the decedent's sister said she tried to leave the apartment but Portia Watson cried out "Catch that girl, she's trying to get out." The door was barred by two locks2 and she was prevented from leaving. Later the decedent's sister was able to escape but was pursued by Portia Watson, who tore the woman's coat off in her effort to prevent flight. Evading pursuit, the sister contacted a friend who called the police.

Police testimony is that they reached the door of appellant's apartment in response to the emergency call, knocked and called out "Police" and requested entry.3 The occupants made no response. Repeated knocking produced no response. After approximately 10 minutes, during which interval the decedent's sister returned to the scene, the caretaker was called on to produce master keys but it developed that double locks had been installed. The police then broke down the door and entered. Inside they found appellant, Portia Watson and one Henry Lincoln Johnson, Jr., appellant's attorney.

On the testimony offered in a pre-trial hearing, to which reference will be made later, the District Court granted the motion to suppress the medication and its container, and the cash found in the apartment. No appeal from that ruling was available to the government. Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957). The record makes it clear that the pre-trial ruling was based on Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) and that the District Court considered the command of Title 18 U.S.C. § 3109 as absolute in all circumstances. The government argued that there were exceptions to literal compliance but did not elaborate on this claim.

At the second trial now under review, appellant objected to any evidence relating to the body of the deceased girl, claiming that the favorable ruling on the other physical evidence, i. e., the tube of medication and outer box, and impounded cash, also controlled as to all other evidence found on entering the room, i. e., the victim's body. The autopsy report and expert opinion as to cause of death, being dependent upon examination of the body, are challenged as "fruit" of an illegal entry. Essentially his claim is that the victim's body was subject to a motion to suppress. See Killough v. United States, D.C.Cir., 1962, 114 U.S.App.D.C. 305, 315 F.2d 241.

The District Judge at the second trial ruled that the testimony of the Deputy Coroner based on his autopsy was admissible. The expert testimony of the Deputy Coroner, Dr. Whelton, who performed the official autopsy required by law,4 established (a) that the deceased was pregnant; (b) that foreign substances introduced into her body were the probable cause of death; and (c) that there were physical manifestations of an attempted abortion.

Appellant's Contentions

Three claims are urged for reversal. Rather than attempting to restate or characterize them, we are reproducing them verbatim from appellant's brief:

"1. Is there sufficient evidence to survive a motion for acquittal upon a charge of attempted abortion where no evidence is adduced of the use of an abortifacient or instrument, an undertaking to perform an abortion, in the absence of medical or lay opinion that an abortion was attempted, upon medical opinion which is merely consistent with some but inconsistent with other evidence and permissible inferences of innocence
"2. Is the charge of a trial court erroneous so as to merit reversal where it reviews only the evidence and inferences consistent with guilt and totally ignores testimony and reasonably permissible inferences consistent with innocence, and is otherwise perceptibly adverse to a defendant who elects not to testify
"3. Is evidence secured from an autopsy performed by the coroner on a body the possession of which was obtained during the course of an illegal search and seizure constitutionally available after entry of an order of suppression and over objection."


The motion for acquittal was properly denied. The evidence of the attempted abortion which resulted in the victim's death was, of course, not that of an eyewitness. On this record there could, obviously, have been only the appellant or his co-defendant Portia Watson who could qualify as eyewitnesses. They did not testify. The prosecution's evidence showed (a) the death of a pregnant, unmarried girl; (b) evidence she had carried $400 in cash to appellant's apartment; (c) testimony by the sister that as she fled the apartment she saw a large quantity of paper money on a table;5 (d) medical evidence consistent with a recently attempted abortion; (e) opportunity of the appellant to commit the act, including direct personal contact with the decedent just before her death in a room which was under his control; (f) that appellant discussed the decedent's "good reactions" to some treatment or medication he had administered; (g) forcible efforts to prevent flight of decedent's sister when appellant said he "believed" the victim was dead. All this was uncontradicted. The evidence at the time of the motion for acquittal clearly presented a jury question. Thomas v. United States, 93 U.S.App.D.C. 392, 211 F.2d 45, cert. denied, 347 U.S. 969, 74 S.Ct. 780, 98 L.Ed. 1110 (1954); Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947).


We have carefully examined the challenged portion of the charge containing discussion of the evidence in light of appellant's claim that it was "slanted" against him and prejudicial. However, any examination of this phase of the charge must take into account that all the evidence came from but one side, for the accused exercised his right to remain silent and tendered no other witnesses. To a degree, it was inherent in any discussion of the evidence that it would tend to be a discussion of the government's evidence. However, the jury was very carefully instructed on the burden of proof and its right to pass on credibility, which in these circumstances could apply only to prosecution witnesses. At the close the jury was again instructed that if its "recollection of the testimony in any respect differs from the summary" given by the court "it is your recollection that must govern." It can hardly be thought that the right of a trial judge to restate or summarize the evidence can be frustrated or circumscribed by a defendant's failure to offer any evidence. We find no merit in the contentions advanced on this claim.


(a) Appellant's third contention will be treated in two parts. The contention is that the entry of the police into his apartment, which had been found by a District Judge on a pre-trial motion to have been illegal, and the seizure of the body immediately following such illegal entry, precluded the introduction of the coroner's testimony about the condition of the body and the cause of death. The doctrine invoked is that commonly known as the "fruit of the poisonous tree." The government challenges the finding that the entry was illegal and argues further that, even if it was, it did not preclude the coroner from testifying.

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