Appendix — Whalen v. United States

a .

In the Supreme Court of the Anited States

Octoser TERM, 1979

No. 78-5471

THOMAS W. WHALEN,

Petitioner

V.

Unrrep States or AMERICA,

Respondent

ON WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

PETITION FOR CERTIORARI FILED SEPTEMBER 25, 1978.

CERTIORARI GRANTED APRIL 16, 1979

MICHAEL RODAK, . CLERR

“em

INDEX TO APPENDIX

Relevant Docket Entries

Indictment, filed October 3, 1977/2

Judgment and Commitment Order, entered on March 4, 1974

by the Honorable William E. Stewart, Associate Judge

of the Superior Court of the District of Columbia ....

Notice of Appeal, filed in the Superior Court of the District

of Columbia on June 18, 197

Opinion of the District of Columbia Court of Appeals

Affirming in Part, Reversing in Part, Vacating in Part

November 10, 1977ù7777 ccc c ccc cw ecw vevesewecccs

Order of the District of Columbia Court of Appeals Denying

Petition for Rehearing—July 14, 1978 ..............

Order of the Supreme Court of the United States Granting

Motion for Leave to Proceed in forma pauperis and

Granting Petition for Writ of Certiorari, April 16,

r « ontana ch ame hmnd Ghee o.

30

RELEVANT DOCKET ENTRIES IN THE

SUPERIOR COURT OF THE DISTRICT OF

COLUMBIA IN CASE NO. 56141-72,

UNITED sa crs OF AMERICA,

THOMAS W. WHALEN

‘DATE ENTRIES JUDGE

10/3/72 Indictment filed. r to Judge Daly,

arraignment set for 10/18/72 at 8:30 a. m.

10/19/72 Defendant informed of Complaint (s) and

right to Counsel, plea not guilty, case con-

tinued to 11/9/72 for Status Call, bond

set at One Hundred Thousand ($100,000)

Dollars Surety. Judge Murphy for Ar-

raignment only, case assigned to Judge

Daly. Murphy

1/7/74 KAREN ROBERSON, OFFICIAL

COURT REPORTER. Pretrial Motion

began. Case continued to 1/8/74 for trial.

Bond remains. Order for accused to

change clothes prior to trial filed. Motion

to Suppress Statements, granted. Motion

to Suppress Prior Criminal Acts, granted.

1/8/74 KAREN ROBERSON, OFFICIAL

COURT REPORTER. Trial resumed at

1:30 P.M., Jury empanelled, to be sworn

at 9:30 a.m, 1/9/74. Bond remains. Stewart

1/16/74 KAREN ROBERSON, OFFICIAL

COURT REPORTER. Jury returned

verdict at 11:55 a. m., Jury returned to

Court at poy am SON ee eae At

torneys) See revised Indictment filed, ff

iii

„D- Murder 11, verdict

guilty, Judgment guilty

„E! — Rape, Verdict guilty,

Judgment guilty

„8 —Burglary 1, Verdict

guilty, J udgment guilty

Counts H' thru O“ pending. Jury

form sealed and filed. No bond set pend-

ing sentencing on 3/4/74 Stewart

3/4/74 ISABELLE M. CORMIER, OFFICIAL

COURT REPORTER.

Sentence:

‘*A’’—(20) Twenty to Life.

020) Twenty to Life,

concurrent with

„

„D — (15) Fifteen to Life,

concurrent to

4 & hd Ohad

E — (15) Fifteen to Life,

consecutive to

N ee Vide “or” &

4 D

„G (10) Ten to (30) Thirty

Years consecutive

to cA, ad Bee

„D, & “py 1

6/18/74 NOTICE OF APPEAL FILED THIS

DATE. eep

RELEVANT DOCKET ENTRIES IN THE

DISTRICT OF COLUMBIA COURT OF APPEALS

V.

UNITED SrAT ES OF AMBRICA

FILINGS—PROCEEDINGS

11/10/77 OPINION per Associate Judge J. Walter Yeag-

7/14/78

8 . he

p opinion form t

petitions for 4

ley Judgment reversing the judgment in part,

ORDEN

and reh en banc

are denied. (Judges Kelly, Kern, Gal-

lagher, Nebeker, Yeagley, Harris, Mack and

Ferren) Statement by Associate Judge Gal-

ATE ISSUED

Notice of filing petition for writ of certiorari in

Supreme Court ~~ geal 26, 1978. Su-

ORDER granting petitioner ’s petition for writ

of in Supreme Court dated April 16, 1979.

Certified record sent to the Supreme Court

iv

Supsnion Covar

or Tun Disraicr or Cotumaia

Holding a Criminal Term

Grand Jury Sworn in on August 1, 1972

Tun Urra States or Amanica : Criminal No. 56151-72

v. : Violation: 22 D.C. Code

Tomas W. WHaten : 2401, 2403, 2801,

oat 1801 (a), 3203,

E ee

— erpetra

ing the Crime of Rape;

First Degree Murder—

Killing in Pe ting

the Crime of Robbery;

Killing in Perpetrating

0 a

the Crime of First De-

gree 4 Second

Degree Murder; Rape;

e

urglary; Rape 0

Armed; First Degree

Burglary While Armed;

Assault With a Danger-

ous Weapon)

The Grand Jury charges:

For Count:

On or about September 10, 1972, within the District of

Columbia, Thomas W. Whalen killed Rebecoa A. Rieser in

perpetrating and attempting to te the crime of

rape, as set forth in the fifth count of this indictment.

Sxoonp Count:

On or about September 10, 1972, within the District of

8 W. Sear N Rieser

5 as set forth in the sixth Bal of this indictment.

1

Tano Count:

On or about September 10, 1972, within the District of

Columbia, Thomas W. Whalen purposely killed Rebecca

A. Rieser in perpetrating and a to perpetrate the

crime of first degree burglary, an offense punishable by im-

prisonment in the penitentiary, as set forth in the seventh

count of this indictment.

Fovurtn Count:

On or about September 10, 1972, within the District of

Columbia, Thomas W. Whalen, with malice aforethought,

strangled Rebecca A. Rieser with his hands, thereby caus-

ing injuries from which the said Rebecca A. Rieser died on

or about September 10, 1972.

Firra Count:

On or about September 10, 1972, within the District of

Columbia, Thomas W, Whalen had carnal knowledge of a

cae named Rebecca A. Rieser, forcibly and against her

Smrn Count:

On or about September 10, 1972, within the District of

Columbia, Thomas W. Whalen, by force and violence and

against resistance and by putting in fear, stole and took

from the person and from the immediate actual possession

of Rebecca A. Rieser, property of value belonging to Re-

becca A. Rieser, consisting of a passport folder containing

money.

Seventa Count:

On or about September 10, 1972, within the District of

Columbia, Thomas W, Whalen entered the dwelling of Re-

becea A. Rieser, while Rebecca A, Rieser was inside the

said dwelling, with intent to steal property of another and

to commit an assault.

E1cHTH Count: |

On or about September 9, 1972, within the District of

Columbia, Thomas W. Whalen, while armed with a danger-

out weapon, that is, a screwdriver, entered the dwelling of

3

Marjorie A. Moore, while Marjorie A. Moore was inside the

said dwelling, with intent to commit an assault.

Nintu Count:

On or about September 9, 1972, within the District of

Columbia, Thomas W. Whalen entered the dwelling of

Marjorie A, Moore, while Marjorie A. Moore was inside the

said dwelling, with intent to commit an assault.

Tyr Count:

On or about September 9, 1972, within the District of

Columbia, Thomas W. Whalen, while armed with a danger-

ous weapon, that is, a screwdriver, had carnal knowledge of

a ny named Marjorie A. Moore, forcibly and against

her will.

ELeventH Count:

On or about September 9, 1972, within the District of

Columbia, Thomas W. Whalen had carnal knowledge of a

female nemed Marjorie A. Moore, forcibly and against her

will.

Twetrra Count:

On or about September 9, 1972, within the District of

Columbia, Thomas W. Whalen assaulted Marjorie A.

Moore with a dangerous weapon, that is, a screwdriver.

TarrTeenta Count:

On or about September 10, 1972, within the District

Columbia, Thomas W. Whalen, while armed with a danger-

ous weapon, that is, a knife, had carnal knowledge of a

female named Ann R. Wilson, forcibly and against her will.

2

Founxraxwrn Count:

On or about September 10, 1972, within the District of

Columbia, Thomas W. Whalen had carnal knowledge of a

female named Ann R. Wilson, forcibly and against her will.

Firreenta Count:

On or about September 10, 1972, within the District of

Columbia, Thomas W. Whalen assaulted Ann R. Wilson

with a dangerous weapon, that is, a knife.

/s/ Harold H. Titus, Jr.

Attorney of the United States in

and for the District of Columbia

A TRUE BILL:

/s/ Walter L. Gieheler

Foreman

Superior Court or THE District or CoLumBIA

CRIMINAL DIVISION

JUDGMENT AND COMMITMENT ORDER

United States of America

vs

Thomas W. Whalen

Case Number 56141-72A, C, D, E, G

PDID Number 153-524

Replaces 51589-72C

WHEREAS the above-named defendant having entered a

plea of

Not Guilty [_] Guilty

to the charge(s) of “Felony Murd. (Rape), °Felony

Murd. (Burg I). »Murd. II, "Rape, Burg I.

and having been found guilty by

D◻DI Jury D the Court

and a pre-sentence investigation and report having been

DI prepared and considered [ not requested

IT IS HEREBY ADJUDCED that the defendant has been

convicted of and is guilty of the offense(s) charged.

The defendant having been given an opportunity to make a

statement in his own behalf, and the government having

had the opportunity to reply thereto, it is hereby

ORDERED that the defendant be committed to the custody

of the Attorney General or his authorized representative

for imprisonment for a period of A' (20) Twenty Years

to Life, C“ (20) Twenty Years to Life, Concurrent with

„A“; „p' (15) Fifteen Years to Life, Concurrent with

„AKC; „E“ (15) Fifteen Years to Life, Consecutive

to A, C & D; „“ (10) Ten to (30) Thirty Years

Consecutive to 9 es bier „D & 44].

IT IS FURTHER ORDERED that the Clerk or his Deputy

deliver a true copy of this order to the United States Mar-

5

6

shal and that the copy shall serve as the commitment of the

defendant.

4 Mar 74

Date

William E Stewart

Judge

A TRUE COPY OF THIS ORDER DELIVERED TO

THE U.S. MARSHAL OR HIS DEPUTY:

3-4-74

Date

Wendell C. Holmes.

/s/ Wendell C. Holmes

Deputy Clerk

—

Superior Court or THe District or CoLuMBIA

ORIMINAL DIVISION

United States of America, Plaintiff

vB. No. 56141-72

Thomas W. Whalen, Defendant

NOTICE OF APPEAL—Filed June 18, 1974

Name and address of appellant:

Thomas W. Whalen

Box 25

Lorton, Virginia 22079

Name and address of appellant’s attorney :

William Gray Schaffer

805-15th Street, N.W.—Suite 419

Washington, D.C. 20005

Offense: Felony Murder (2 Counts) ; Murder in the Second

Degree; Rape; Burglary in the First Degree

Date of Judgment or Order: Judgment of Conviction,

3/4/74; Sentence, 3/4/74; Order denying Defendant’s

Motions for New Trial, 6/13/74.

Brief Description of Judgment or Order: Verdict of

Guilty; Judgment of Conviction; Sentence Denial of

Defendant’s Motions for New Trial.

Where confined, if not on bail: Lorton Reformatory, Lor-

ton, Virginia

The above-named ap t hereby appeals to the District

of Columbia Court of Appeals from the judgment or order

above-mentioned.

William Gray Schaffer

(Trial) Attorney for Appellant

Telephone No. 638-2525

District of Columbia Court of Appeals.

Thomas W. WHALEN, Appellant,

V

UNITED STATES, Appellee.

No. 8583.

Argued Nov. 11, 1976.

Decided Nov. 10, 1977.

W. Gary Kohlman, Public Defender Service, Washing-

ton, D. C., for appellant.

Peter E. George, Asst. U. S. Atty., with whom Earl J.

Silbert, U. S. Atty., and John A. Terry, Asst. U. S. Atty.,

were on the brief, for appellee.

Before KELLY FICKLING “ and YEAGLEY, Associ-

ate Judges.

YEAGLEY, Associate Judge:

At 12:30 p. m. on September 10, 1972, the partially

clothed body of 26-year-old Rebecca Rieser was found lying

on the floor of her room at the McLean Gardens complex in

northwest Washington, D. C. The medical examiner’s office

determined that Ms. Rieser died sometime between 10.30

a. m. and 12:30 p. m. on that day. They discovered abra-

sions and signs of trauma about her neck and face, and

concluded that death was caused by manual strangulation.

In the course of autopsy, swabs of fluid were taken from

Ms. Rieser’s vagina, which when examined revealed the

presence of intact sperm not more than eight hours old.

Appellant was a maintenance worker at McLean Gar-

dens. On the morning of September 10 he had been in the

approximate location of the building in which Ms. Rieser

lived, for the purpose of removing from a vacant dormitory

some furniture which the building manager said he could

have. He had admitted to co-workers that morning of hav-

ing just engaged in intercourse with someone at McLean

Gardens. Later his fingerprints and palm print were found

in the victim’s room. Because of his duties, he had keys to

all apartments and rooms at McLean Gardens.

Four days later, police arrested appellant for the rape

and murder of Rebecca Rieser. At that time he was in

police custody on other charges.

* Associate Judge Fickling was a member of this division at the time the

case was argued, but died before entry of this opinion.

— —

= ——

9

On October 3, 1972, a grand jury indicted appellant and

charged him with fifteen counts of felony murder, rape,

robbery, burglary and related offenses involving three dif-

ferent victims. On July 23, 1973, the court severed counts

relating to the two victims other than Ms. Rieser and ulti-

mately dismissed them on motion of the government. Trial

commenced on October 9, 1973, but ended the next day in a

defense requested mistrial.

Trial recommenced in Superior Court on January 8,

1974 and culminated on January 16, 1974 in jury verdicts

of guilty on two counts of felony murder (the underlying

felonies being rape and first-degree burglary), second-

degree murder, rape, and first-degree burglary. The court

granted motions for judgment of acquittal on counts charg-

ing appellant with robbery and felony murder (robbery).

On March 4, 1974, appellant received concurrent sentences

of 20 years to life on each felony murder count and 15 years

to life for second-degree murder. He also received a sen-

tence of 15 years to life for rape, to run consecutively with

the murder sentences, and 10 to 30 years for first-degree

burglary to run consecutively with the murder and rape

sentences. N

For the reasons which follow, we are compelled to re-

verse appellant’s convictions for felony murder (first-

degree burglary) and first-degree burglary. We vacate ap-

pellant’s sentence for second-degree murder. We affirm

appellant’s convictions for felony murder (rape) and rape.

We note that the action we take with regard to the offenses

for which appellant received concurrent sentences will not

likely affect the length of his prison term. Nonetheless, if

any is founded in error we are bound to reverse in light of

potential collateral consequences stemming from an invalid

conviction, Benton v. M 395 U.S. 784, 89 S.Ct.

, 2056, 23 L. Ed. 2d 707 (1969). We will dispose of the many

issues raised by this appeal seriatim.’

I. AMENDMENT OF THE GRAND JURY

INDICTMENT (FIRST-DEGREE BURGLARY)

The first of appellant’s contentions which we address is

that the trial court erred in permitting the government to

For civil litigation brought by the victim's father as a result of the incident

which ave rise to this case see Risser v. District of Columbia, 663 F.2d 408

(b. C. Cir., 1077).

10

amend count seven of the indictment subsequent to its case-

in-chief to conform the indictment to a ruling of the court on

the absence of evidence of theft adduced at trial. Count

seven charged appellant with first-degree burglary as

follows:

On or about September 10, 1972, within the District of

Columbia, Thomas W. Whalen entered the dwelling of

Rebecca A. Rieser, while Rebecca A. Rieser was inside

the said dwelling, with intent to steal the property of

another and to commit an assault. D.C. Code 1973, § 22-

1801 (a).

After the trial court granted appellant’s motion for judg-

ment of acquittal on count two (felony murder (robbery) )

and count six (robbery), agreeing that the evidence of theft

presented at trial was legally insufficient, the government

announced it would amend count seven to delete the words

„to steal the property of another and’’. Defense counsel

objected and argued that because no evidence of intent to

steal had been adduced, the government had failed to prove

count seven and that the court should dismiss the count.

Instead, the trial court authorized the government to amend

the count as it had proposed.

Appellant argues that in so doing, the trial court intruded

impermissibly on his Fifth Amendment right to be charged

for serious crimes only by grand jury indictment. We agree

and reverse.

The first clause of the Fifth Amendment provides:

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury.

This is „. directly to the District of Columbia.

Barry v. Hall, 68 App. D. C. 350, 98 F. 2d 222 (1988).

The indictment requirement interposes ordinary citizens

as a safeguard between a prospective defendant and op-

pressive actions of a prosecutor or a court. Wood v.

Georgia, 370 U.S. 375, 82 S. Ct. 1864, 8 L.Ed.2d 569 (1962) ;

Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 41

L.Ed.2d 252 (1960) ; Gaither v. United States, 184 U. S. App.

D.C. 154, 413 F. 2d 1061 (1969). It aims to apprise the ac-

onsed of charges against him so that he may prepare his

defense, and to describe the crime charged with specificity

sufficient. to enable the accused to protect against future

11

jeopardy for the same offense. Gaither v. United States,

supra,

These purposes are violated where an indictment is

amended in substance in a manner other than by resubmis-

sion to the grand jury. Russell v. United States, 369 U.S.

749, 770, 82 S. Ot. 1038, 8 L.Ed.2d 240 (1962). An amend-

ment of substance occurs when the charging terms are al-

tered by prosecutor or court after the grand jury has last

passed upon them. Gaither v. United States, supra. We

conclude that such an alteration took place in the instant

case.

Indeed, the instant case is strikingly similar to Eæ Parte

Bain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849 (1887). In Bain,

defendant, a banking officer, was charged with making a

false report ‘‘with intent to deceive the Comptroller of the

Currency and the agent appointed to examine the affairs of

said association.“ Id. at 4, 7 S.Ct. at 783. The government

thereafter moved for and the trial court ordered an amend-

ment to strike the italicized words. The Supreme Court

reversed petitioner’s conviction, rejecting the trial judge’s

assertion that the grand jury would have indicted without

the omitted language:

But it is not for the court to say whether they would or

not. The party can only be tried wpon the indictment as

found by such grand jury, and especially upon all its lan-

guage found in the charging part of that instrument.

How can the court say that there may not have been more

than one of the jurors who found this indictment who was

satisfied that false report was made to deceive the

comptroller, but was not convinced that it was made to

deceive anybody else? And how can it be said that, with

these words stricken out, it is the indictment which was

found by the grand jury? If it lies within the province of

a court to change the charging part of an indictment to

suit its own notions of what it ought to have been, or what

the grand jury would probably have made it if their

attention had been called to suggested changes, the great

importance which the common law attaches to an indict-

ment by a grand jury, as a prerequisite to a prisoner’s

trial for a crime, and without which the constitution says

% no person shall be held to answer, may be frittered

away until its value is almost destroyed. IId. at 9-10,

7 S. Ct. at 786 (emphasis added).]

12

See also Russell v. United States, supra; Stirone v. United

States, supra.

In the instant case, it would at best be speculative to say

that the grand jury would have returned a true bill on count

seven if the indictment had been presented to it as it ap-

peared after the amendment. Although it might be logical

to assume that any grand juror who would find intent to

steal and to commit assault would also find either element

individually, we cannot say that some grand jurors may

not have relied primarily on the belief that appellant en-

tered the victim’s apartment with intent to steal. They may

have been ambivalent on the question whether appellant

also entered with intent to commit assault, and conceivably

would have voted against the issuance of a true bill contain-

ing only the latter charge.

We are not presented with a situation in which an indict-

ment charges several offenses, or the commission of one

offense in several ways. Under such circumstances, with-

drawal from the jury’s consideration of one offense or one

alleged method of commiting it would not constitute a for-

bidden amendment of the indictment. Ford v. United

States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927) ;

Salinger v. United States, 272 U.S. 542, 47.8.Ct. 173, 71

L.Ed. 398 (1926). The instant case, like Bain, presents an

unseverable, unitary charge, stated in the conjunctive.

Prior to amendment, the government had failed to prove

the offense charged. As amended it was not the charge on

which the grand jury indicted.

We read Bain to be concerned not only with whether the

amendment technically charges a different offense, broader

or narrower, than that charged in the original indictment,

but to be concerned also with the sanctity of the grand jury

process, the constitutional requirement that conviction rest

on the actual indictment issued by the grand jury, and the

inability to be certain that the grand jury would have in-

dicted on the amended charge. In the instant case we eannot

be certain. We thus reverse.“

* Reversal of appellant’s conviction for first-degree burglary necessitates

reversal of his convietion for felony murder based on that burglary (count

three) and makes it unnecessary to reach his contentions with regard to the

Propriety of jury instructions and sentencing in connection with his burglary

conviction.

13

II. SUFFICIENCY OF EVIDENCE—FELONY

MURDER (RAPE) AND RAPE

Appellant assigns as error the trial court’s denial of his

motions for judgment of acquittal on charges of felony

murder (rape) (count one) and rape (count five). We find

no error and affirm. :

In deciding to submit these issues to the jury the trial

judge need only have been satisfied that the government in-

troduced enough evidence so that a reasonable person

might find guilt beyond a reasonable doubt. Curley v.

United States, 81 U.S. App. D.C. 389, 392-98, 160 F.2d 229,

232-33, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L. Ed.

1850 (1947). On appeal, we view the evidence in a light

most favorable to the party prevailing below. Saunders v.

United States, D.C.App., 317 A.2d 867 (1974). The evidence

in this case is compatible fully with a finding that appellant

raped and killed Rebecca Rieser on September 10, 1972.

There was evidence to support a conclusion that appel-

lant was in the victim’s room at the approximate time of

the events which gave rise to the 8 him.

Testimony established that appellant’s erprints were

found on the victim’s dresser. His palm print was lifted

from a Sunday newspaper which testimony established the

victim had purchased at approximately10:15 a. m. on her

way home from church that morning. Appellant had keys

to all apartments and rooms in the complex.

There was also evidence to support a conclusion that ap-

pellant had intercourse with the victim on the morning of

her death. Intact sperm was found in her vagina. Fiber

samples recovered from the victim’s bedsheets, body, and

clothing connected appellant with the victim. Moreover, ap-

pellant had admitted to co-workers of having engaged in

intercourse at McLean Gardens on that morning. as

There was evidence to support a conclusion that this in-

tercourse was not voluntary. Evidence showed that the

victim was an extremely orderly person, yet her room was

disheveled when she was found, and her pants were inside

out on the floor, missing a button. Her broken watchband

was also found on the floor. There were strangle marks

on the victim’s neck. Although this evidence is circum-

stantial, we note 9 by its very nature rarely gives

rise to eyewitness testimony.

Because this court will not reverse a conviction on the

facts as long as there is evidence which reasonably permits

14

a finding of guilt, Manago v. United States, D.C.App., 331

A.2d 335, 336 (1975), and because we find evidence in abun-

dance to support the verdict, we affirm appellant’s convic-

tion on counts one and five.

Affirmance of appellant’s conviction for felony murder

compels us to vacate his concurrent sentence for second-

degree murder. Second-degree murder is a lesser included

offense of felony murder. Fuller v. United States, 132 U.S.

App. D. C. 264, 293, 407 F. 2d 1199, 1228-29 (1967) (en banc

only on question whether concurrent convictions for first-

degree felony murder and second-degree murder can

stand), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L. Ed. 2d

125 (1968) ; Jackson v. United States, 114 U.S. App. D. C. 181,

183, 313 F. 2d 572, 574 (1962). Because appellant failed to

move below to have the issue of second-degree murder sub-

mitted do the jury only as a lesser included offense, and

because we do not find that the trial court’s failure to do

80 sua sponte was plain error affecting substantial rights,

we will not reverse his conviction for second-degree murder.

Fuller, 1 hs 132 U.S.App.D.C. at 295, 407 F.2d at 1230.

See also Watts v. United States, D.C. App., 362 A.2d 706

(1976) (en banc); Adams v. United States, D. C. App., 302

A. 2d 232 (1978). This does not, however, mean that his

sentence on that conviction should stand. Fuller, supra, 132

U.S.App.D.C. at 298 n.52, 407 F. 2d at 1233 n.52.

III. MERGER OF FELONY MURDER

(RAPE) AND RAPE

Appellant next contends that his conviction for rape must

be vacated because this offense should merge into the felony

murder which was based on it and for which appellant was

also convicted and sentenced. Because the purposes of the

felony murder doctrine would in this way be violated, and

for reasons we shall discuss, we find no justification for the

application of the doctrine of merger to felony murder. We

* affirm. 1 3

erger of two offenses is ordinarily appropriate wuen

the lesser offense consists entirely of some but not all of the

elements of the greater offense. Bloc er v. United

States, 284 U.S. 299, 52 8. Ct. 180, 76 L.Ed. 306 (1982) ;

Hall v. United States, D. C. App., 348 A. 2d 35, 38-39 (1975).

Thus, for example, assault merges into assault with a dan-

gerous weapon, and assault with a dangerous weapon

15

merges into armed robbery. See Bates v. United States,

D. C. App., 327 A.2d 542 (1974); Taylor v. United States,

D. C. App., 324 A. 2d 683 (1974); Quick v. United States,

D. C. App., 316 A. 2d 875 (1974). ö

In determining whether merger is appropriate, this court

has refused to analyze solely by abstract consideration of

the statutes involved or the wording of the indictment, and

has looked instead to the societal interests protected by the

statutes under consideration. Hall v. United States, D.C.

App., 348 A.2d 35, 39 (1975); cf. Williams v. Oklahoma,

358 U.S. 576, 79 S.Ct. 421, 3 L. Ed. 2d 516 (1959).

Shortly after our decision in Hall we upheld separate

convictions for first-degree premeditated murder and fel-

ony murder (burglary), holding that ‘‘the societal interests

served by each statute are separate and distinct.’’ Blango

v. United States, D. C. App., 378 A.2d 885, 888 (1977). In

further explaining this rationale, we later said, ‘‘the socie-

tal interest served by the burglary statute, protection of

occupied dwellings, is separate and distinct from that of the

murder statute, security and value of the person.“ Harris

v. United States, D.C.App., 377 A.2d 34, 38 (1977). ä

For similar reasons we necessarily hold that the societal

interests which Congress sought to protect by enactment of

D.C.Code 1973, § 22-2401 (felony murder) and § 22-2801

(rape) are separate and distinct.‘ The rape statute is to

protect women from sexual assault. The felony murder

statute purports to protect human life—it dispenses with

the need for the prosecution to establish that the accused

In Hall, this court held that simple assault was not a lesser included offense

of obstruction of justice by assaulting a witness, and that conviction of the

former did not merge into conviction of the latter. We noted that

the interests protected by the two statutes are widely disparate, The crime

of obstructing justice is societal in that it is intended to insulate the criminal |

justice system from corruption whereas the crime of simple assault is intended

to protect the physical security of individual citizens, [Id. at 39.)

See United States v. Butler, 149 U. g. App. D. C. 300, 462 F. 2d 1196 (1972) (con.

secutive sentences for murder, housebreaking, larceny upheld); and Irby v.

United States, 129 U.B.App.D.C. 17, 390 F.2d 482 (1967) (en banc) (consecu-

16

killed with a particular state of mind, and instead permits

the jury to infer the requisite intent from the fact that a

felony was committed.’ We find nothing in this legislation

to suggest that Congress intended the underlying offense

(rape) to be nonprosecutable under the merger rule when

the defendant is charged with felony murder. Accordingly

there can be no merger of these offenses.

Appellant directs our attention to United States v.

Greene, 160 U.S. App. D. C. 21, 489 F. 2d 1145 (1973), in which

the United States Court of Appeals held, inter alia, that

conviction for reseue of a federal prisoner, a federal felony,

merged into conviction for felony murder. The court cited

no precedent for its holding, and indeed as Chief Judge

Bazelon observed in his statement as to why he would grant

rehearing en banc, ‘‘this court has affirmed both the under-

lying felony and the felony murder in countless cases.

Id. at 45, 489 F. ad at 1169.

Greene is not binding on this court’ and we decline to

apply its reasoning to this case. We find highly persuasive,

however, the views expressed by Chief Judge Bazelon:

The government itself pointed out in its petition for

rehearing that this merger was predicated on a wholly

erroneous understanding of the felony murder doctrine.

At common law, homicides were divided into two cate-

gories, murder and manslaughter, with murder requiring

a showing of ‘‘malice.’’ Any homicide committed in the

course of a felony was considered murder because malice

could be implied from the commission of the felony. When

homicides were further subdivided by statute into first

degree murder, second degree murder and manslaughter,

the doctrine of felony murder was preserved, and the

underlying felony was viewed as providing the ‘‘ premedi-

tation’’ and ‘‘deliberation’’ otherwise required for first

degree murder, as well as malice, where necessary.

* See R. Perkins, Criminal Law 45 (24 ed. 1969). For an excellent discussion

pr ners tere as ede mow Chambers, 624 8.W.2d 826, 829 (Mo.1975)

(en :

* Bee, ¢. g., Fuller v. United States, supra; Calloway v. United States, 180

U. S. App D. C. 278, 399 F. 2d 1006, cert. denied, 393 U.S. 087, 89 8. Ot. 464, 21

L. Ed. 2d 448 (1968) ; Coleman v. United States, 111 U.S. App. D. C. 210, 206 F. ad

565 (1962) ; Carter v. United States, 96 U. 8. App. D. O. 40, 288 V. 2 888 (1086);

Wheeler v. United States, 82 U.. App. D. O. 363, 165 F. 2d 225 (1947), oert.

denied, 383 U. 8. 829, 68 8. Ct. 448, 92 L. d. 1115 (1948).

M. A. . 0. Ryan, D. C. App., 286 A.24 810 (1971).

17

Given this rationale for the felony murder doctrine, it

strains credulity to hold that the underlying felony

merges into the felony murder. The statute proscribing

the underlying felony—robbery, for example—is de-

signed to protect a wholly different societal interest from

the felony murder statute, which is intended to protect

against homicide.

The underlying felony is an essential element of felony

murder only because without it the homicide might be

second degree murder or manslaughter. Clearly, neither

manslaughter nor second degree murder merges with any

other felony like robbery or assisting a prisoner to escape.

IId. at 44-45, 489 F. ad at 1168-69 (footnotes omitted).]

We are impressed both with Chief Judge Bazelon’s societal

interest analysis and with his recognition that while the

underlying felony is an element of felony murder it serves a

more important function as an intent-divining mechanism.

Consistent with this view it is clear that rape is not a lesser

included offense of felony murder, and that merger is in-

appropriate even absent societal interest analysis.

Appellant also directs our attention to state court deci-

sions which have applied the merger doctrine to felony

murder.’ We find more persuasive the cases which have

declined to apply merger in this situation.’

We cannot accept a construction of law the effect of

which would be to render the underlying felony a nullity

any time death occurred during its perpetration. To do so

wouid encourage rather than deter crime.“ We find nothing

to suggest that this was the congressional intent. Appel-

lant’s conviction for rape is affirmed. |

® See State v. Woods, 286 N. C. 612, 218 8. B. 3d 214 (1078); Johnson v. State,

314 80.24 791 (Fla. App. 1076); State ea rel. Wikberg v. Henderson, 202 Bo.24

505 (La. 1974); State v. Hubbard, 128 N.J.Super. 346, 303 A. 8d 87 (1978);

State v. Carleon, 6 Wis.24 596, 93 N. W. ad 354 (1968).

* See United States v. Bolden, 169 U.. App. D.C. 60, 614 F.2d 1801 (1078)

(felony murder, robbery conviction vacated on other grounds) ; United States v.

Heinlein, 160 U. 8. App. D. C. 157, 400 F.24 726 (1978) (felony murder, assault

with intent to rape while armed); Coleman v. United States, supra note 6

(felony murder, robbery), See aleo State v. Chambers, 624 AW. sd 826, 829

(Mo. 1976) (en bane) (felony murder, stealing).

10 See United States v. Butler, 149 U.. App. D. C. 800, 304, 468 F.2d 1196,

1199 (1972).

*

* 2

4

Pa

N

2

Va

4

2

>

1

18

IV. COMPETENCE TO STAND TRIAL

Appellant contends that the trial court erred in not in-

quiring further into the question whether appellant was

competent to stand trial. We find no such error.

At a hearing on the question of appellant’s competence

held on August 21, 1978, the government produced two

experts.

Dr. Richard Ratner, a tric consultant at St. Elisa-

psychia

. beth’s Hospital, testified that he had examined appellant on

December 22, 1972 and January 5, 1973, and had on both

occasions found him cooperative and to exhibit no signs of

behavior disorder Dr. Ratner testified that appellant was

6 and events, including the circum-

stances surrounding the charges against him. Dr. Ratner

asserted his np ttre: appellant had a I e er

understanding e proceedings against and could

gaye tetas gt re

The government next called Dr. Thomas Polley, a sa

a dag employed at St. Elizabeth’s Hospital’s p

tion section. Dr. Polley testified that he had

3 ad Bikenioa: an loth aed Desastas on

r lenge he elena mil

circumstances surrounding the charges against him. It

was Dr. Polley’s opinion, like Dr. Ratner’s, that appellant

would be willing and able to cooperate with and assist coun-

sel in his defense. Dr. Polley testified that his examination

of appellant revealed no active *

try Oe on A a psychiatrist with the Forensic Psychia-

cet dated oe ee.

tea 3 3

: f 2 . » ne Ts a 2 ha jae 1 n 2 — *

7 3 1 ~ % - eed >: we 7 3 * 1 N

5 8 . e 1 jas Aes S a ‘ : : 5

. ra ae N P ay ae 3 Wg n e e 1 1 S *

„ an eae STR tae 8 on pi RR Peta RS Sy SE ees ea 8 7 r 2G Be ae

19

delayed pending Dr. Whyte’s testimony. At this point, the

following discussion took place between Judge Stewart and

defense counsel :

THE COURT: Mr. Shaffer, since commencement of

your representation of Mr. Whalen, have you had or do

you presently have, as his lawyer, not as a psychiatrist,

but as his lawyer, any basis to assert or any basis to

believe that he is unable to properly assist you, to respond

to your inquiries? -

MR. SHAFFER: No, I do not.

THE COURT: All right. I feel in view of the testi-

mony which I have heard, the lack of any assertion of the

defense of insanity, that the defendant is competent.

Even Dr. Whyte agrees, as I best read his report.. It

seems to me that with all due respect, it’s more legal than

medical, and in the face of the testimony which I have

heard, I will sign the appropriate order indicating the

finding of competency.

Appellant argues that the trial court erred in making a

competency determination without hearing testimony from

Dr. Whyte. We cannot say as a matter of law that the trial

judge should have inquired further, and consequently we

affirm his finding that appellant was competent to stand

trial. Key to this determination is our refusal to substitute

our judgment for that of the trial court in a situation in

which reasonable persons could rightfully differ, and 4

which the trial court’s finding had evidentiary sup

Freas v. Gitomer, D.C.App., 256 A.2d 578, 574 (1 55

Johnson b. Lloyd, D.C. App., 211 A 2d 764, 768 (1968). Al-

though the testimony of Dr. Whyte might have shed addi-

tional light on the of appellant’s competence, he

was unavailable. The testimony of Drs. Ratner and Polley,

the letter from Dr. Whyte, the statement of appellant’s

attorney, Mr. Shaffer, and the trial court’s familiarity

with the circumstances and its opportunity to observe ap-

pellant’s démeanor provided ample ground on which to

make a reasoned decision.

Appellant’s reliance on Drope v. Missouri, 420 US. 162,

95 C. Ot. 896; 43 L. E. 2d 108 (974 and Pate v. ‘Robinson,

388 U.S. 875, 86 8. Ct. 886, 15 L. 615 (1968) is mis.

placed. In Drope, the trial judge concluded that the pay.

chiatric evaluation attached to petitioner’s pretrial motion

20

for continuance did not contain sufficient indicia of incom-

petence to warrant further inquiry. The judge thus di-

rected that the case proceed to trial without a competency

hearing. After trial had commenced, the judge was in-

formed first that petitioner had attempted to choke his wife

to death and subsequently that petitioner had shot himself.

The trial judge nevertheless denied a mistrial. In reversing,

the Supreme Court concluded that the trial judge had failed

to give proper weight to the information suggesting in-

competence which. came to light during trial.“ Drope v.

Missouri, supra, 420 U.S. at 179, 95 S.Ct. at 907. In the

instant case a hearing was held, and the record reveals that

the trial judge, unlike his counterpart in Drope, was con-

cerned with and sensitive to the question of appellant’s

competence to stand trial. Moreover, our disinclination to

second-guess the trial judge finds support in Drope:

There are, of course, no fixed or immutable signs which

invariably indicate the need for further inquiries to de-

termine fitness to proceed. The question is often a difficult

one in which a wide range of manifestations and subtle

nuances are implicated. That they are difficult to evaluate

is suggested by the varying opinions trained psychiatrists

os entertain on the same facts. [Jd. at 180, 95 S.Ct. at

1

In Pate, supra, the Court held that petitioner was consti-

tutionally entitled to a hearing on the issue of his compe-

tence to stand trial, notwithstanding his failure to demand

one as required by Illinois statute and that the trial court

erred in failing to invoke, sua sponte, the statutory

Pate is similar to Drope and distinguishable from the

instant case on two grounds. First, there was no compe-

tency hearing in Pate. Second, there were manifestations

of incompetence during trial, specifically the repeated in-

sistence of defense counsel that his client’s present sanity

was very much in issue, which there should have alerted the

court to address the issue. In the instant case, defense coun-

nnn.

assert his elient 's lack of p Us

21

In sum, we find no basis to hold that the trial court erred

in not inquiring further.“

V. SEARCH AND SEIZURE OF HAIR SAMPLES

Appellant contends that the trial court erred in admitting

into evidence head and pubic hair samples seized from him

without a search warrant subsequent to his arrest. He as-

serts that there was no probable cause to search, and that

in any event, no exigent circumstances existed to justify

dispensing with the search warrant requirement.

Appellant was arersted for the rape and murder of

Rebecca Rieser on September 14, 1972, at 8:45 a. m. by

homicide Officer Thomas J. Kilcullen of the Metropolitan

Police. At that time, he was already in police custody on

another charge. Almost immediately, prior to appellant’s

presentment at 9:30 a. m., Officer Colin Alford, a police

technician with the mobile crime office, took hair samples

from appellant’s head and pubic area. The trial court

denied appellant’s motion to suppress these samples at a

hearing on October 3, 1973, and held that the challenged

search was valid as incident to a lawful arrest.

There is some authority to support the trial court’s hold-

ing. A search incident to a lawful arrest is a well recog-

nized exception to the warrant requirement which has been

justified by the reasonableness of searching for weapons,

instruments of escape, and evidence of crime when a person

is taken into official custody and detained lawfully. United

States v. Edwards, 415 US. 801, 94 S. Ct. 1234, 39 L.Ed.2d

771 (1975); Cupp v. Mur 5 5 „412 U.. 291, 93 S.Ct. 2000,

36 L. Ed. 2d 900 (1973) ; Chimel v. California, 395 U.S. 752,

89 S.Ct. 23 L. Ed. 2d 685 (1969); Weeks v. United

States, 232 U.S. 383, 34 S.Ct. 341, 58 L. Ed. 652 (1914).

We 1298 to extend this rationale to the instant case,

however, because it is not entirely clear whether the right

to search an arrestee for evidence of crime without a war-

rant applies to a situation such as this, in which the evi-

dence sought lacked for the most part an evanescent quality,

i. e., the possibility that it might dissipate or be lost or

destroyed by the defendant, an accomplice, | or the simple

e e e n dai hints eee . o wen een bh the ta eon

J Serares setae So vemreeee: Gapement 5 Se meee

after it ‘became clear to the eourt that defense counsel would not

contest his client ’s competence.

22

passage of time, which could justify an exception to the

warrant requirement. See Schmerber v. California, 384

U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

It can be argued that the Supreme Court has resolved

this question in the affirmative. In United States v. Ed-

wards, 415 U.S. 801, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1975),

the Court upheld the warrantless seizure of petitioner’s

clothing, which police removed from him after he had been

incarcerated for ten hours and which contained inculpatory

paint chips. The Court deemed this a search incident to a

lawful custodial arrest, subject to and satisfying the test of

reasonableness. The Court neither relied on nor referred to

the evanescent quality of the paint chips. When this is con-

sidered in light of the fact that the search took place ten

hours after petitioner was arrested, a period during which

a warrant could have been obtained, Edwards appears to

carve out a broad exception to the warrant requirement for

incidental searches. The Edwards exception does not seem

to have been conditioned on the evanescent quality of the

evidence seized. :

We note, however, that the evanescence of fingernail

scrapings was the basis for upholding their warrantless

seizure in Cupp v. Murphy, supra, 412 U.S. at 295, 93 S.Ct.

2000, and that the paint chips in Edwards were similarly

evanescent, even though the Court did not expressly rely on

this factor.

More recently in United States v. Chadwick, — U.S. —.

97 S.Ct. 2476, 53 L. Ed. 2d 538 (1977), the Court affirmed the

suppression of marijuana seized from a footlocker without

a warrant after petitioners were arrested. The Court re-

jected the government’ s contention that a warrantless

search of property in Possession of an arrestee was always

constitutionally permissible if supported by probable cause.

The Court noted that once government agents gained con-

trol of the footlocker there was ‘‘no longer any danger that

eee sual’ donee’ ts tha DEORE 40" colin. 0

weapon or destroy evidence. Id. at 2485 (emphasis

added). To this apparent departure from Edwards, the

Court added the observation that police had had one hour

of exclusive control of the footlocker before they searched

it, during which they could have obtained a warrant. Id. at

In the instant case police could not base a warrantless

23

search and seizure of hair samples on any realistic fear that

appellant would destroy his own hair. Moreover, appellant

was in custody at a police station and a warrant could easily

have been obtained.“ Although Edwards may be broad

enough to support the admissibility of this evidence. Cupp

and Chadwick engender doubts. We are not prepared at

this time to hold that the warrantless search and seizure of

hair samples from an arrestee is proper absent some addi-

tional exigent cireumstance.“ We need not, however, decide

that question here because the other evidence of appellant’s

guilt in this case was so overwhelming as to render any

possible error committed by admission of these hair sam-

ples harmless beyond a reasonable doubt. Chapman v. Cali-

fornia, 386 U.S. 18, 87 S.Ct. 824, 17 L. Ed. 2d 705 (1967).

VI. VAGINAL SWABS

Appellant contends that the government mishandled vagi-

nal swabs taken from the victim, thus depriving appellant

of critical exculpatory evidence and his due process right to

a fair trial, and violating his right to discovery under

Super. Ct. Cr. R. 16. We disagree.

In the course of performing an autopsy on the vietim, Dr.

James Luke, the Chief Medical Examiner for the District of

Columbia, prepared vaginal swabs which were tested in

September 1972 by a government expert, Agent Cronin, for

the presence of semen. Agent Cronin did not test the swabs

for blood group substances, later testifying that he believed

such an attempt would have produced inaccurate results in

light of the likelihood of contamination from bacteria nat-

urally present in the vagina.

14 See Bouse v. Bussey, 21 Cr. L. 2458 (7/21/77). In that case, appellant con-

tended that his Fourth Amendment rights had been violated by defendant, a

police officer who, acting without a warrant, had forcibly removed strands of

appellant’s pubic hair. The United States Court of Appeals for the Ninth Cir.

euit noted that such a ‘‘ warrantless search cannot be justified by exigent cir-

cumstances. Appellant was being held in custody pending trial, and there was

no danger that the evidence sought might be destroyed before a warfant could

be obtained. Id. „ NEWS then 'egpMMeY BSE'S ‘Chess ve

action under 42 U.8.0. f 1983.

. that some courte have epgitoved: the warrantless tak-

ing of hair samples by finding the attendant intrusion sufficiently minor and

reasonable to justify dispensing with the search warrant requirement. See

United States v. D Am, 408 F. ad 381 (24 Cir. 1969); People v. Cutler, 78

Mich. App. 318, 261 N.W.2d 808 (1977); Commonwealth v. Tarver, 345 N. I. ad

671 (Mass.1975). We decline at this time to adopt this reasoning.

The defense expert, Dr. Ruth Guy, examined the swabs in

the summer of 1973. She testified that she was able to find

both type A and type B blood group substances on the

swabs, and that notwithstanding the possibility of bacterial

contamination she had no doubt of the accuracy of her re-

sults, which showed that appellant could not have been

the person who raped Rebecca Rieser.

The government called in rebuttal another expert, Dr.

Alexander Weiner. Dr. Weiner testified against the efficacy

of blood group analysis of the swabs, agreeing with Agent

Cronin that the natural presence of vaginal bacteria pre-

cluded accurate results, and noting that, in any event, saline

tests conducted by Agent Cronin to determine the presence

of semen stripped the swabs of material necessary for blood

group analysis.

Appellant asserts that this saline test amounted to mis-

handling of the swabs. He asserts further that the govern-

ment packaged and stored the swabs in a manner which

resulted in increasing the likelihood of bacterial contamina-

tion, and that the government was negligent in failing to

test the swabs for blood type before subjecting them to

procedures which created a risk of bacterial contamination.

Appellant’s contention that the government mishandled

the swabs and thus deprived him of important exculpatory

evidence is undermined fatally by the testimony of defense

expert Dr. Guy in unequivocal support of the accuracy of

her findings. What this argument really comes down to is

that the jury did not accept Dr. Guy’s textimony and be-

lieved instead the contrary testimony of government ex-

perts, who asserted that the swabs were of no scientific value

for blood grouping ab initio. Where there is conflicting tes-

timony the acceptance by the jury of testimony presented

by either side is binding on us. If Dr. Guy was correct, she

was able to arrive at a highly accurate, untainted result. If

government experts were correct, no such result could ever

have been reached, no matter how the evidence was handled.

The jury believed the latter. We have no basis to upset the

jury’s finding, and we hold that it was arrived at fairly.

Moreover, even if we agreed with appellant that this evi-

dence was mishandled, the other evidence against him—tests

1 Dr. Guy also testified that he found evidence of exeulpatory AB blood

grouping substances on the vietim s panties and on a towel found at the scene

of the crime. This the jury also apparently chose not to accept. Appellant

does not contend that this evidence was mishandled.

from other stained items, fingerprints, palm print, fiber

samples, statement to co-workers, presence and opportunity

—renders any error committed harmless beyond a reason-

able doubt. Chapman v. California, 386 U.S. 18, 87 S. Ot.

824, 17 L. Ed. 2d 705 (1967)." Finally, rejection of appel-

lant 's contentions with respect to this issue is, of course,

fatal to his assertion that the government violated his

rights to discovery under Super.Ct.Cr.R. 16.

VII. PROSECUTORIAL COMMENT

Appellant contends that government counsel ’s closing ar-

gument included comments on appellant’s failure to testify

in his own behalf and that the trial court erred in not apply-

ing remedial sanctions after defense counsel objected. Gov-

ernment counsel’s statement was as follows:

What do you have in this case? You have a defendant

who can’t explain the time period or where he goes. He

17 Cases on which appellant relies principally do not support his argument.

In Brady v. Maryland, 378 U.8. 83, 83 8. Ot. 1104, 10 L.Bd.2d 215 (1963), the

prosecution withheld from petitioner a copy of an extrajudicial admission by

his codefendant that the latter, and not petitioner, had committed the actual

homicide, The Court held this violative of due process. In the instant case,

appellant was given complete access to the vaginal swabs, and, indeed, appel-

lant 's expert conducted tests the results of which, if believed by the jury, would

have exculpated appellant.

United States v. Bryant, 142 U.. App. D.C. 182, 489 F.2d 642, aff'd on vo-

mand, 145 U.. App. D.C. 280, 448 F.2d 1182 (1971), like Brady and unlike the

instant case presented a situation in which a; pellant was denied access to poten.

tially exculpatory evidence. There government agents tape-recorded conversa-

tions between appellant and an undercover agent concerning an alleged sale of

narcotics, The government subsequently destroyed the tape, which it asserted

was unintelligible, before appellant was given an opportunity to hear it. Appel-

lant contended that his narcotics conviction should be overturned on Brady

grounds, Following remand, his conviction was affirmed, because, in the court’s

view, the negligence involved in the loss of the evidence while in the govern-

ment’s possession was outweighed by a totality of very strong evidence against

appellant. g

Finally, in Marshall v. United States, D. C. App., 340 A. 2d 805 (1978), appel -

lant was convicted of robbery (purse snatching). There this court held, inter

alia, that it was not error for the trial court to refuse to strike the complain-

ing witness’ testimony where the police had returned her purse to her and she

had discarded it, making it impossible for appellant to subject it to fingerprint

analysis. This court noted that the police had acted wrongfully in returning the

purse before the defense was given an opportunity to examine it, but deemed

highly speculative the exculpatory potential of the evidence of which appellant

had been deprived. In the instant case, appellant experienced no such depriva-

tion, and indeed the jury rejected appellant’s exculpatory evidence.

has no explanation as to where he was during that time.

When he was asked where he was, he admitted, when he

spoke to Spencer Jenkins, he said, I been sleeping.“ He

knows there’s a time gap in there, and at that time he—a

coincfdence or proof of guilt?

The particular phrase to which appellant objects is ‘‘he

has no explanation as to where he was during that time.

This statement, appellant asserts, violates Griffin v. Cali-

fornia, 380 U.S. 609, 613-15, 85 S.Ct. 1229, 14 L.Ed.2d 106

(1965), in which the Supreme Court held that the Fifth and

Fourteenth Amendments forbid prosecutorial comment on

an accused’s failure to testify. See also Manago v. United

States, supra.

We hold that government counsel’s statement was not

improper. Taken in context, the statement was clearly not

a reference to appellant’s failure to take the witness stand

but referred instead to appellant’s inability, on the morn-

ing of the rape and murder, to reply satisfactorily to a co-

worker who had asked him where he had been.

This court has held that the standard for resolving such

cases is whether the language used was manifestly in-

tended or was of such character that the jury would natu-

rally necessarily take it to be a comment on the failure

to testify.” Blango v. United States, D. C. App., 385 A.2d

230, 232 (1975). In Byrd v. United States, B. G. App., 364

A.2d 1215 (1976), this court rejected a contention similar

to the instant one, noting that ‘‘the statement by its terms

did not refer specifically to the [appellant’s) failure to

testify or invite the jury to consider such a failure in weigh-

ing the evidence. Id. at 1218. See also Tuckson v. United

States, D.C.App., A.2d 138 (1976), which recognizes

the right of the prosecutor to make ‘‘reasonable comments

on the evidence and to draw such inferences from the

testimony as will support his theory of the case.’’ Id at 142.

In the instant case we believe that government counsel’s

statement made no suggestion, substantial or otherwise, of

appellant’s failure to testify, that no reasonable jury would

so construe it, and that the statement was no more than a

reasonable comment on the evidence. We thus find no merit

to appellant’s contention.

In „ appellant’s convictions for felony murder

— ), and first-degree burglary are re-

versed. sentence for second-degree murder is vacated.

—

27

Appellant’s convictions for felony murder (rape) and rape

are offi ‘

So ordered.

District of Columbia Court of Appeals.

Thomas W. WHALEN, Appellant,

v.

UNITED STATES, Appellee.

No. 8583.

July 14, 1978.

On Petitions for Rehearing or Rehearing En Banc.

W. Gary Kohlman, Public Defender Service, Washington,

D.C., was on the petition for appellant.

Earl J. Silbert, U. S. Atty., Washington, D.C., with whom

John A. Terry and Peter E. George, Asst. U. S. Attys.,

Washington, D.C., were on the petition for appellee.

Before NEWMAN, Chief Judge, and KELLY,* KERN,

GALLAGHER, NEBEKER, AGLEY,*® HARRIS,

MACK and FERREN, Associate Judges.

ORDER

PER CURIAM.

On consideration of the petitions filed herein by counsel

for appellant and by counsel for appellee for rehearing or,

alternatively, for rehearing en banc and a majority of the

en bane Court having voted to deny the petitions, it is

ORDERED that the en bance petitions be denied; and it is

FURTHER ORDERED for the division that the peti-

tions for rehearing are denied. (

sibly ‘‘amended’’ the indictment in this case. I do not con-

sider, however, that my view on this requires a vote to go

en banc on the issue. I say this, in particular, because

I

believe it will be a simple matter for the government to

avoid a repetition of this decision in the future.

* Denotes division.

The government’s problem, obviously, will be to draft its

indictments so as to avoid a conclusion that it is an un-

severable, unitary charge’’ in a similar situation when the

conjunctive is utilized. For example, if the burglary had

been charged here as being an entry (a) with intent to

steal and (b) with intent to assault, I doubt it could

logically be considered a unitary charge. If I were to con-

clude that the government will have a serious problem on

its hands on this score in the future or will be hampered

by this decision, I would vote to go en banc on this issue.

But I do not think so.

Statement by Associate Judge NEBEKER, with whom

Associate Judge HARRIS concurs, of reasons for voting

to grant appellee’s petition for rehearing en banc: I voted

to grant appellee’s petition for rehearing en banc because

I believe that, contrary to the panel’s statement. Whalen

v. United States, D.C.App. 379 A.2d 1152, 1157 (1977), the

indictment here did charge the commission of one offense

in two ways. The offense charged was burglary, which is

defined by D. C. Code 1973, § 22-1801 as unlawful entry with

i to commit any criminal offense. The offense of

The division’s opinion declares that the indictment stated

an unseverable, unitary charge, stated in the conjunc-

tive.” Id. at 1157. I do not understand this statement,

device’ must be read, regardless of punctuation, as

modifying both the assault provision and the putting in

jeopardy provision. [Emphasis added.]

As the panel recognized, withdrawal from the jury’s

consideration of one alleged method of committing an

offense is permissible. Ford v. United States, 273 U.S. 593,

47 S.Ct. 531, 71 L.Ed. 793 (1927) ; Salinger v. United States,

272 US. 542, 47 S.Ct. 173, 71 L.Ed. 398 (1926). Thus, it

seems clear to me that the amendment here was proper.

Moreover, the amendment did not broaden the charge or

result in the defendant’s having to defend against accusa-

tions not returned by the grand jury—which, I believe,

was the evil from which Ez parte Bain, 121 U.S. 1, 7 S.Ct.

781, 30 L.Ed. 849 (1887) sought to protect defendants.

Although Judge Gallagher is correct in stating that this

indictment problem will be an easy one for the government

to avoid in the future, I think the conflict between the panel

opinion and Ford v. United States, supra, and Salinger v.

United States, swpra, requires en banc consideration under

D.C. App. R. 40.

Supreme Court or THE Unirep States

No. 78-5471

Thomas W. Whalen,

Petitioner,

v.

United States; and

James E. Pynes,

Petitioner,

v.

United States

ON PETITION FOR WRIT OF CERTIORARI to the

District of Columbia Court of Appeals.

ON CONSIDERATION of the motion for leave to pro-

ceed herein in forma pauperis and of the petition for writ

of certiorari, it is ordered by this Court that the motion of

Thomas W. Whalen for leave to proceed in forma pauperis

be, and the same is hereby, granted; and the petition for

writ of certiorari in Whalen v. United States, District of

Columbia Court of Appeals case No. 8583 be, and the same

is hereby, granted.

April 16, 1979

Mr. Justice Powell took no part in the consideration or

decision of this petition.

t U.S. Government Printing Office: 1979-—297-169/34

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