Welch v. United States

• Decision Date: 02 September 1983
• Docket Number: No. 81-840.,81-840.
• Citation: 466 A.2d 829
• Parties: Bernard C. WELCH, a/k/a Bernard C. Welch, Jr., a/k/a Norman Heiman, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

466 A.2d 829

Bernard C. WELCH, a/k/a Bernard C. Welch, Jr., a/k/a Norman Heiman, Appellant, v. UNITED STATES, Appellee.

No. 81-840.

District of Columbia Court of Appeals.

Argued March 24, 1983.

Decided September 2, 1983.

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Alan B. Soschin, Washington, D.C., appointed by the court, for appellant.

Wendy Bebie, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty. and Michael W. Farrell and John R. Fisher, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

John A. Terry, an Asst. U.S. Atty., Washington, D.C., at the time the briefs were filed, also entered an appearance for appellee.

Before NEWMAN, Chief Judge, and MACK and FERREN, Associate Judges.

MACK, Associate Judge:

On January 14, 1981, appellant was charged in an eleven count indictment with one count each of first-degree felony murder while armed (D.C.Code §§ 22-2401, -3202 (1981)), second-degree burglary while armed (D.C.Code §§ 22-1801(b), -3202 (1981)), and carrying a pistol without a license (D.C.Code § 22-3204 (1981)), and four counts each of second-degree burglary (D.C.Code § 22-1801(b) (1981)) and grand larceny (D.C.Code § 22-2201 (1981)). On April 1, 1981, the trial court heard and denied appellant's motion for change of venue and granted motions to sequester the jury filed by both appellant and by the government. On April 6, the court heard and denied, inter alia, appellant's motion to suppress physical evidence seized during a search of his home and automobile. The trial began later on the day of April 6, and on April 10 a jury found appellant guilty of all charges. Appellant was sentenced to a term of imprisonment totalling 143 years to life.

The following issues are raised on appeal:

1. Whether, due to extensive pretrial publicity, appellant was deprived of his right to an impartial jury;

2. whether appellant's right to be present at all stages of his trial was violated by his absence from the voir dire examinations conducted in an anteroom and at the bench;

3. whether appellant was denied his Sixth Amendment right to effective assistance of counsel due to an alleged conflict of interest between trial counsel and appellant; and

4. whether appellant's motion to suppress physical evidence obtained during a search of his home and of his car was erroneously denied.

We affirm appellant's convictions. Because of the nature and scope of appellant's grounds for appeal, we will only briefly describe the events which led to appellant's convictions and include detailed facts relevant to each claim as they are separately discussed.

On December 5, 1980, between 8 and 9:30 p.m., Dr. Michael Halberstam and his wife, Elliott, returned to their residence at 2806 Battery Place, N.W. and were confronted by an intruder who shot Dr. Halberstam and then fled. The Halberstams ran to their car and, while driving to the hospital, noticed a man at an intersection. Dr. Halberstam said "That's the guy," swerved the car toward the individual and struck him. Dr. Halberstam continued driving until he fell unconscious and crashed his car into a tree. He was taken to Sibley Hospital where he was pronounced dead; the cause of death was determined to be gunshot wounds of the chest.

The police were called to Dana Place and University Terrace where Jack Mulford said he had heard gunshots and thought he knew where the perpetrator could be found. Sgt. Robert Cermak was led to 5026 Dana Place where appellant was found and apprehended. Appellant was taken to Sibley Hospital where Mrs. Halberstam identified him as the person who her husband had hit with their automobile. Appellant was then transported to D.C. General Hospital. A search of his personal effects uncovered, among other items, a key which appeared to belong to a Mercedes Benz. On December 6, Detective Russell Drummond received this key from the Mobile Crime Unit and drove to the 5000 block of Dana Place in an attempt to locate the vehicle to which the key belonged. A Mercedes Benz was found across from 5026 Dana Place (where appellant was apprehended) and the key recovered from appellant opened the door to this vehicle. The car was towed to police headquarters and searched. The murder weapon was found in a tree space near where appellant and the car were discovered; this gun had been reported stolen in a burglary committed a few weeks earlier.

In a voice line-up held on December 12 at Police Department Headquarters, Mrs. Halberstam limited to three the voices which sounded like the one she heard on the night of the burglary and murder; one of the three was that of appellant.

Ms. Mamie Stallworth, who worked at 2816 Battery Place, testified that on December 5, 1980, she observed a silver Mercedes Benz "drifting slowly down to the intersection," make a brief stop at 2806 Battery Place (the Halberstam residence) and then turn the corner. She described the driver as a white male with a moustache, sideburns and brown hair. When Ms. Stallworth left her place of employment to go home at about 5:45 p.m. that evening, she drove down Battery Place to an intersection where she was blocked from getting through by a silver Mercedes. She yelled at the driver to move and he finally maneuvered his car to permit her to pass. At this time, she was eight to ten feet from the driver who she said was the same man she had seen earlier in the day. At a line-up on December 12, Ms. Stallworth identified appellant as the man in the silver Mercedes.

The government presented a series of witnesses who lived in the Halberstam's neighborhood, who testified as to burglaries at their residences on December 5 and who identified items which were recovered during the search of appellant's car as those items missing as a result of the burglaries. In addition, Special Agent John Kelly testified that particles of gunshot residue were found on the blue jeans recovered from appellant.

Appellant put forth a defense of misidentification by presenting four witnesses who testified that they had seen appellant in his home in Great Falls as late as 4:55 p.m. on December 5. On rebuttal, Detective Colen Alford testified that the trip from appellant's home to Dana and Battery Place took 23½ minutes.

I

Appellant first claims that, due to the extensive, adverse pretrial publicity which surrounded this case, the trial court's denial of his motion to change venue denied him due process and, in any event, he was denied his constitutional right to a fair trial by an impartial jury. Specifically, appellant contends that, because a majority of the prospective and deliberating jurors had, through the pretrial media coverage, heard or read about various aspects of appellant's offenses or some other notorious aspect of his life, doubts were raised as to whether the jury could be impartial and unbiased. We are unpersuaded.

It is fundamental that the Sixth Amendment guarantees "to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). When a threat to this constitutional protection is posed, a change of venue is, typically, an appropriate remedy. The Superior Court of the District of Columbia, however, sits as a single unitary judicial district, and change of venue is not available. United States v. Edwards, 430 A.2d 1321, 1345 (D.C.1981) (en banc), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982). Thus, the court's denial of appellant's motion for a change of venue was required.

Appellant's right to a fair trial by an impartial jury is not defeated, however, merely because the requested remedy is unavailable. Instead, other measures must be employed to assure that appellant's right to a fair trial is preserved.

Appellant's implicit assertion that the pretrial publicity present in this case was so prejudicial as to warrant the presumption that he was deprived of a fair trial cannot be sustained. The trial court found that:

[s]ince Defendant's arrest, the local media and at least one magazine of national circulation have published a variety of facts concerning Defendant, including his prior arrests and criminal history. Additionally, the media has published articles relating to the cache of property recovered from the Defendant's home that has probable connections with similar offenses committed both here and elsewhere.

Yet "pretrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial." Nebraska Press Association v. Stuart, 427 U.S. 539, 565, 96 S.Ct. 2791, 2805-06, 49 L.Ed.2d 683 (1976).

There are circumstances in which the pretrial publicity surrounding a case is so inflammatory that it can be presumed that a defendant was deprived of a fair trial. In Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), a twenty minute "interview" with the defendant, during which he confessed to the charge pending against him, was thrice televised in a town with a population of 150,000 from which the jury panel was drawn. The Supreme Court found that, under those circumstances, a fair trial could not be obtained in the jurisdiction of the offense and reversed the conviction. The publicity surrounding the instant case, however, was not of such an extreme nature. The trial court specifically found, and we agree, that "the media coverage has been neither inherently prejudicial nor dramatically staged. Rather, the accounts have been straight-forward, unemotional factual accounts of events and of the progress of official and unofficial investigations," and that the publicity was not so inflammatory as to deprive appellant of a fair trial.¹ Thus, here, in the absence of extreme circumstances, the Sixth Amendment inquiry turns on the adequacy of the voir dire. Khaalis v. United States, 408 A.2d 313, 334 (D.C.1979), cert....