Russel L. Perry, Jr. v. United States , 347 F.2d 813 ( 1965 )

BURGER, Circuit Judge:

This is an appeal at government expense from conviction for assault with a deadly weapon under 22 D.C. Code Ann. § 502 (1961) and assault with intent to kill under D.C. Code Ann. § 501 (1961).

In the early morning hours of a party, an altercation developed between the complaining witness and a woman guest. Appellant, who was a friend of the woman, left the room, returned promptly with a pistol and shot the complainant at least three times. Appellant then went to Precinct Station #1 and surrendered himself and the pistol at 6:00 a. m., saying that he had shot the victim but would tell them no more.¹ Just prior to appellant’s arrival, officers in the field had reported the shooting to the police station and directed that appellant be picked up. Policemen to whom appellant surrendered took him immediately to the scene of the shooting, where they encountered great confusion; they remained there only a short time during which appellant again admitted the shooting but refused to elaborate further. The police then returned to the station with appellant and upon arrival and before the booking process at approximately 6:20 or 6:30 a. m. appellant made certain oral statements. The events described, beginning with appellant’s surrender, the trip to the scene of the shooting, the time spent there, the return trip, and appellant’s oral statement to the police, all occurred within 20 to 30 minutes. Appellant’s oral statements to police were introduced as part of the Government’s case in chief over objections that they were obtained in violation of Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), and cases decided thereunder.

An officer testified to these admissions as follows:

“Well, he stated that the complainant had been in the front room of the house arguing with Joe and his wife. * * * And that he went in and told him to be quiet. Then he went back in the dining room and Taylor then came into the dining room and sat down and Lenora Miles, the complainant’s [sic] girl friend, came into the room and Taylor started to yell at her and slapped her a couple of times and knocked her down. He said he got up, went down in the basement and got a gun and came back and started shooting at him. He said that Taylor had taken a swing at him when he came back with the gun, but missed. And he didn’t recall how many times he fired the gun.”

Record, pp. 169-70.

Appellant took the stand in his own behalf and admitted the shooting, contending that he had acted in genuine fear for the bodily safety of his girl friend who was being attacked by the complainant. He testified that when he left the dining room to get the gun, the complainant was still struggling with the girl and holding her around the neck. On cross-examination, by way of impeachment, the prosecutor confronted appellant with a brief portion of a written statement which appellant admitted having signed.² Neither this written portion nor the oral statements concerning the altercation mentioned appellant’s contention that when he left for the basement the struggle was continuing and the complaining witness was choking his girl friend; the prosecutor on cross-examination of appellant and in his arguments to the jury emphasized these omissions from appellant’s statements to police given shortly after the event.

In light of the continuous movement between the precinct station and the scene of the shooting and since the record indicates that no opportunity for sustained interrogation of appellant was present, we conclude that the police testimony as to the oral statements by appellant was admissible under the doctrine of spontaneous threshold admissions. See United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 (1944); Crump v. United States, No. 17939, 118 U.S. App.D.C. 302, 335 F.2d 724, p. 727 n. 3; Ramey v. United States, No. 17774, 118 U.S.App.D.C. 355, 336 F.2d 743.

The procedures and activities of a local police precinct station are not to be equated to the orderly, step by step development of a court trial or appellate argument, where each participant has an assigned role which is fitted into an established pattern. In a police station there are people coming and going; telephone calls can constantly interrupt officers engaged in other' activities. Calls, interruptions, reports of crimes, the arrival of witnesses, suspects, complainants do not occur in a regulated pattern as, for example, with clients calling at a lawyer’s office or patients waiting their turn to see a doctor; the parallel is more accurately the emergency receiving room of a general hospital.

Moreover, it is a fundamental error to assume that each police officer at all times knows all that other officers may know about any given case in its early stages. The situation existing at the time of the events under review is quite unlike that revealed in the record before us in full detail, which discloses that the totality of police information, now known to have been reliable, warranted presentment to a magistrate 15 or 20 minutes before the challenged statement was made. It is quite easy after the event— with the benefit of hindsight — to pinpoint the time when probable cause ripened and when police officers could have appropriately taken a suspect to a magistrate with reasonable assurance he would also find probable cause to hold an accused; but we are not prepared to say that such a brief delay, after appellant had already admitted the shooting, is fatal to any use of later utterances which simply elaborated on his original admission that he had shot someone. When we accept a threshold utterance of an accused who spontaneously and promptly tells police that he “shot a man,” it places too much stress on common sense to say that we should exclude his more detailed statement concerning the event made shortly thereafter. Some reasonable measure of latitude must be allowed for police officers working under stress with situations and problems which are inherently charged with emotional elements and in circumstances not conducive to the calm reflective processes available in ex post facto evaluation at the appellate stage.

We have examined the record in light of appellant’s contentions on the issues relating to instructions on self-defense and criminal responsibility, comments of the trial judge, and denial of a speedy trial and find no error warranting reversal. Additionally, we have considered appellant’s claim that he was entitled to a mental examination by experts of his own choice at government expense, rather than being limited to members of the Staff of St. Elizabeths Hospital. There is no absolute right to examination by an expert of the accused’s choice and in the circumstances of this case we find no abuse of discretion in denying such a request. Cf. Watson v. Cameron, 114 U.S.App.D.C. 151, 312 F.2d 878 (1962); Appel v. Overholser, 82 U.S.App.D.C. 379, 164 F.2d 511 (1947).

Affirmed.

1 . A stipulation of police officers’ testimony on this point was read to the jury:

“At 6 a.m. on December 15, 1962, Perry appeared at No. 1 Precinct and in the presence of Sergeant H. W. Collier and Lieutenant G. A. Marino, surrendered a gun and himself saying:

“ ‘You are looking for me, here is the gun.’ Lieutenant asked, ‘are you Russell Perry?’”

Record, p. 153.

2 . Did you not say, Mr. Perry (reading):

“Then I pulled Jerome back into the dining room and told him to go to bed and then Lenora came back to the dining room and Jerome then pulled away from me and grabbed Lenora around the neck and she then pulled away from him and then he began to punch her in the face with his fists. I tried to separate them and he knocked Lenora to the floor and she struck her head on the dining room table. At this time, I lost control of my senses and I thought of the gun that was downstairs in the basement and I ran downstairs and got it. I then came back upstairs and started shooting at Jerome.”

Record, pp. 235-36.

This statement was not introduced in the Government’s case in chief: it was apparently taken by police officers between 7:05 and 8:30 a.m. that morning, after appellant had been booked. At bench conference the prosecuting attorney indicated that he would offer a portion of the statement for impeachment purposes only. Defense counsel offered no objection either at the bench or before the jury to the prosecutor’s use of the excerpt from the statement. In view of the lack of objection on this point, we cannot overlook the possibility that defense counsel determined as a matter of trial tactics to offer no objection, possibly because he felt that the statement was more corroborative than impeaching of appellant’s testimony. This would have been a reasonable tactical judgment on his part. We find no reversible error in the prosecutor’s limited use of the written statement in this case.