Joseph Willis v. United States , 271 F.2d 477 ( 1959 )

BURGER, Circuit Judge.

These are appeals from convictions on three indictments charging appellant with violations of the narcotics laws.¹ Appellant urges two grounds for reversal: (1) that certain evidence was illegally seized from his person and should have been suppressed; (2) that the indictments were improperly consolidated for trial, and the judge failed to instruct the jury to consider separately the evidence-relating to each of them.

We see no merit to appellant’s argument that the trial court erred in refusing to suppress certain narcotics and marked money which the government allegedly took from his person. Even if it be assumed that the warrant directing appellant’s arrest was defective under Giordenello v. United States, 1958, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503,² there was ample probable cause for arrest without a warrant³ and this fact was conclusively established at trial.⁴ Appellant was given an opportunity to rebut prosecution evidence which constituted the government’s case against him and which also showed probable cause for the arrest, and he tried to do so, but he failed to convince the jury. Under these circumstances the Giordenello case does not prevent the government from relying on a showing of probable cause extrinsic to the warrant and complaint. It therefore follows that the arrest was legal and the evidence properly seized as incident thereto. Draper v. United States, 1959, 358 U.S. 307, 79 S. Ct. 329, 3 L.Ed.2d 327; Brinegar v. United States, 1949, 338 U.S. 160, 69 S. Ct. 1302, 93 L.Ed. 1879.

While we think appellant has no standing to seek suppression of the narcotics, we need not reach that issue in order to dispose of the case. Christensen v. United States, 1958, 104 U.S.App.D.C. 35, 259 F.2d 192; Accardo v. United States, 101 U.S.App.D.C. 162, 247 F.2d 568, certiorari denied 1957, 355 U.S. 898, 78 S.Ct. 273, 2 L.Ed.2d 195; Harvey v. United States, 90 U.S.App.D.C. 167, 193 F.2d 928, certiorari denied 1952, 343 U.S. 927, 72 S.Ct. 760, 96 L.Ed. 1337. In Williams v. United States, 1956, 99 U.S. App.D.C. 161, 237 F.2d 789, we were dealing with seized property which was indisputably in the defendant’s possession after what was held to be an illegal arrest; that case holds simply that the fruit of an illegal arrest is inadmissible, as we also held in Bynum v. United States, 1958, 104 U.S.App.D.C. 368, 262 F.2d 465.

On the consolidation point, two separate assignments of error are made: (1) that the initial allowance of consolidation was error, and (2) that failure to instruct the jury to consider the indictments and the evidence separately was error. However, the record shows that trial counsel affirmatively expressed satisfaction with the consolidation,⁵ and at the conclusion of the instructions, he said he had no others he wanted given.⁶

At the beginning of the trial the judge could not possibly have foretold that consolidation might eventually and erroneously prejudice appellant; only his defense counsel could then have possibly known. Absent an objection at the outset the trial court acted properly in permitting consolidation. The time-saving factor could not be allowed to override the interests of justice if a timely objection had been made, but there was no occasion to reject the consolidation since trial counsel did not suggest that defendant would be harmed thereby. Appellant cannot now be heard to argue, for the first time, that consolidation was erroneous and prejudicial.

In the absence of a request for a charge, reversal is justified only if the failure to instruct constitutes a basic and highly prejudicial error. Esters v. United States, 8 Cir., 1958, 260 F.2d 393 (warning on accomplice testimony); United States v. Gordon, 3 Cir., 242 F.2d 122, certiorari denied 1957, 354 U.S. 921, 77 S.Ct. 1378, 1 L.Ed.2d 1436 (explanation of offense of tax evasion). In Obery v. United States, 1954, 95 U.S.App.D.C. 28, 217 F.2d 860, certiorari denied 1955, 349 U.S. 923, 75 S.Ct. 665, 99 L.Ed. 1255, appellant urged reversal of his robbery conviction on the ground that the trial court failed to instruct the jury about the circumstances of his identification and about the weight to be accorded a challenged confession. No request for these instructions had been made at the trial. We affirmed on the theory that an omitted instruction for which there had been no request could never warrant reversal unless it concerned a “crucial issue either of law or of fact of a sort with which the jury cannot properly deal without a particularized instruction from the court.” 95 U.S.App.D.C. at page 29, 217 F.2d at page 861. The omitted instruction of which appellant here complains for the first time is not such an instruction as would lead us to make an exception to Rule 30, Fed.R.Crim.P.,⁷ under the doctrine of the Obery case.

There has been no contention that trial counsel’s failure to object to consolidation and his failure to request instructions constitute ineffective assistance of counsel, nor could such a contention be maintained. See Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, certiorari denied 1958, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86.

The dissenting view seems to be that unsuccessful “trial tactics” of defense counsel are grounds for reversal in every criminal case unless, on review, we are satisfied, first, that those tactics were “based on an informed and deliberate choice,” and second, that there was “an acceptance of a disadvantage for the purpose of acquiring some advantage.” This is a novel view of both the appellate function and of trial tactics.

To determine whether trial counsel made his “choice” of tactics on an informed basis, according to the dissent, would require both an examination into his professional competence, skill and judgment, and possibly even a psychoanalysis of defense counsel to explore his motives. No appellate court anywhere is competent to embark on such an inquiry. It is enough that trial counsel at the time he made the choice believed what he was doing was to his client’s advantage. Unless appellate courts are to engage in an utterly impossible course of exploring these purely subjective aspects, we simply cannot hope to find these answers. Indeed, this is not the business of judges and we are less than candid if we do not say so.

The dissent would equate “plain error” as defined in the rules to what is now described as “obvious blunder” — as seen through the eyes of the appellate court after the event. If we were to adopt this concept that “plain error” is any error plain enough to be perceived by hindsight, there would be nothing left of the harmless error rule. We are urged, in effect, to adopt a rule that where a choice of trial tactics of defense counsel “proves fatally prejudicial to the defense and which, in retrospect, should not have been made” (emphasis added) we should reverse the conviction unless the trial judge has performed the “duty to instruct the jury in such a way as to mitigate the prejudice * * * [of] an obvious blunder.” This notion is at war with all our traditions of a trial as a search for truth in the millstones of the adversary process. In any event this issue has been set at rest by this court in Mitchell v. United States, 104 U.S.App.D.C. at page 63, 259 F.2d at page 793, where this court, speaking through Chief Judge Prettyman, said:

“It is no part of the judge’s function to evaluate the relative efficacy of trial tactics. If a trial judge were to understand that after the trial he would in all probability be called upon to determine whether each or any of the trial steps taken by the defense was or was not ‘ineffective’, his whole attitude toward and conduct of the trial would change. We think this would destroy the concept of an impartial judge, a concept basic to our system.”

If judges are to have imposed upon them the duty of correcting “obvious blunders” of defense counsel, fairness would dictate that they must also, in order to protect the public, correct “obvious blunders” of the prosecutors. Such a procedure could not but fail to sap the independence of our trial bar; moreover, it would, as Judge Prettyman pointed out, inject the trial judge into what, as an impartial presider, he should abstain from — except in the most extraordinary and unusual circumstances.

Affirmed.

1 . 35 Stat. 614 (1909), as amended 21 - U.S.C.A. § 174; and Internal Revenue Code of 1954, §§ 4704(a) and 4705(a), 26 U.S.C.A. §§ 4704(a), 4705(a).

2 . The complaint on which the warrant was based (Rules 3 and 4, Fed.R.Crim. P., 18 U.S.C.A.) merely recited: “That on or about July 23, 1957, at Washington in the District of Columbia John Doe/Little Joe did unlawfully possess and sell a narcotic drug, to wit, heroin.”

3 . The testimony of Officer King was that on two occasions prior to his arrest appellant had sold narcotics through an intermediary to King. It is evident from the record that the arresting officer, Aiken, was informed of these sales and King clearly identified appellant to Aiken. The second sale occurred about two hours before appellant was arrested in the pool hall where it allegedly took place.

4 . Except for the narcotics and marked money allegedly taken from appellant’s person when he was arrested, the arresting officer had available at the time of arrest all the information on which the jury subsequently found appellant guilty beyond a reasonable doubt. •

5 . “The Court: Are these consolidated, all three?

“Defense Counsel: Yes, sir.

“Prosecutor: Yes, Your Honor, all three of them.

“The Court: I just wanted to make sure, so wo wouldn’t make error here.”

6 . “The Court: Is there anything further by either counsel?

“Prosecutor: No, Your Honor.

“Defense Counsel: No, sir.”

7 . “No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.”