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03/06/92 THOMAS WEST v. UNITED STATES

March 6, 1992

THOMAS WEST, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia Criminal Division; (Hon. Steffen W. Graae, Trial Judge)

Before Schwelb and Wagner, Associate Judges, and Belson,* Senior Judge.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge: Appellant, Thomas West, was convicted by jury for distribution of a controlled substance (cocaine) and possession with intent to distribute a controlled substance (cocaine), both violations of D.C. Code § 33-541 (a)(1) (1988). Appellant challenges on appeal the trial court's denial of his motion to suppress evidence and a requested defense theory instruction. Finding no reversible error, we affirm.

I.

At the suppression hearing a Metropolitan police officer, Marvin L. Lyons, Sr., testified that on July 24, 1987 at about 8:30 p.m., he and his partner walked into the area of 18th and Bryant Streets, N.E. in the District to make an undercover drug purchase. After asking Lyons if he was looking for cocaine, an unidentified person told appellant what Lyons wanted. Appellant then displayed what he called, "June Bug," consisting of cocaine in vials and in powder form. After a Discussion with appellant about price, Officer Lyons purchased two vials for forty dollars. While walking back to his car, Officer Lyons encountered another undercover officer to whom he gave appellant's description, which she radioed to an arrest team. When Lyons got back to his car, he also radioed a detailed clothing description for the suspect, including that he had a beard and mustache. The officer also confirmed that he made the "buy." About ten minutes later, Officer Lyons drove by the location where the police were holding appellant and positively identified him as the person who sold the drugs. Sergeant Steven E. West testified that he was involved in appellant's arrest and that money was seized from appellant by another officer which was turned over to him. On this evidence, the trial court denied appellant's motion to suppress the money and drugs, rejecting appellant's argument that the government had failed to present evidence sufficient to establish the lawfulness of the warrantless arrest and seizure.

Appellant concedes that the evidence at trial was sufficient to prove probable cause for his arrest and subsequent search. In addition to a repetition of essentially the same testimony presented at the suppression hearing, the government presented evidence tending to show that members of the arrest team heard the broadcast and, within a few seconds, spotted appellant who matched the description. Officer Brian Paige and Sergeant Steven E. West saw appellant discard a brown paper bag and other objects (vials of crack-cocaine and 6 packets of cocaine powder) before he was patted down for weapons and arrested. Sergeant West picked up the bag which contained 183 vials containing a rock-like substance, a portion of which field tested positive for cocaine. The police took appellant to a nearby corner where Officer Lyons identified him as the person from whom he had just purchased cocaine. Appellant was searched at the precinct, and two hundred ninety-five dollars was recovered from his pocket, which included the forty dollars in pre-recorded funds used by Officer Lyons to purchase the drugs. The substance purchased by Lyons and recovered at the time of appellant's arrest were chemically analyzed and found to be cocaine. Appellant, who failed to appear for trial after the jury was impaneled, presented no evidence.

II.

At the outset, the government argues that defendant has forfeited his right to appeal by absenting himself from trial after the jury was sworn and opening statements made by the government and defense counsel. According to information included in the record on appeal by stipulation of the parties, appellant was arrested in New York approximately four months after he fled this jurisdiction, and he was not returned here until February 1, 1989.

An appellate court has discretion to refuse to consider an appeal of an appellant who absconds after conviction. Matter of S.H., 570 A.2d 814, 815-16 (D.C. 1990); United States v. Parrish, 281 App. D.C. 116, 117-18, 887 F.2d 1107, 1108-09 (1989); United States v. Alvarez, 868 F.2d 547, 548 (2d Cir. 1989); United States v. Persico, 853 F.2d 134, 137 (2d Cir. 1988). This well established principle applies to an appellant who flees after a finding of guilty, but prior to sentencing. Parrish, 281 U.S. App. D.C. at 117, 887 F.2d at 1108; Alvarez, 868 F.2d at 548; Persico, 853 F.2d at 137.

Appellant argues that this court is required to hear the appeal as it is a right conferred by statute. We disagree. The right to appeal in a criminal case in the District of Columbia is governed by the same section which governs appellate jurisdiction of appeals from all final orders and judgments of the Superior Court, D.C. Code § 11-721 (a)(1) and (b). D.C. Code § 11-721 (b) (1989) provides:

Except as provided in subsection (c) of this section, a party aggrieved by an order or judgment specified in subsection (a) of this section, may appeal therefrom as of right to the District of Columbia Court of Appeals. [ *fn1 ]

Once an appellate right is conferred by statute, it cannot be denied indiscriminately. Howell v. United States, 455 A.2d 1371, 1372 (D.C. 1983). In spite of the applicability of the same statute in S.H., we held that dismissal of the case of a fugitive appellant is discretionary with the court. S.H., supra, 570 A.2d at 816. We observed that "appellate courts are free to dismiss the appeal, of a fugitive even where an appeal lies as of right by statute or state constitution." Id. at 815-16 (citations and footnote omitted). The decision in Molinaro v. New Jersey, 396 U.S. 365, 24 L. Ed. 2d 586, 90 S. Ct. 498 (1970), which enunciated the principle that an appellant's escape from custody disentitles him or her from obtaining a determination of claims on appeal, *fn2 did not discuss the issue, but involved an appeal brought pursuant to a statutory right. See S.H., 570 A.2d at 814 n.5. However, a statutory right to appeal may be waived by untimely notice pursuant to procedural rules or "by abandonment through flight." United States v. Holmes, 680 F.2d 1372, 1374 (8th Cir. 1982), cert. denied, 460 U.S. 1015, 75 L. Ed. 2d 486, 103 S. Ct. 1259 (1983). Where an appellant flees, it is not the court which deprives appellant of the right conferred by statute, but appellant, who by his conduct, is deemed to have abandoned or waived that right. See Parrish, supra, 281 U.S. App. D.C. at 117, 887 F.2d at 1108; Persico, supra, 853 F.2d at 138. In S.H., we accepted the rationale of these cases and held that the court has discretionary power to dismiss an appeal where an appellant absconds during its pendency. 570 A.2d at 815-16.

Appellant argues that the rule should not apply where the abscondence occurs prior to appeal. If dismissal were never authorized under these circumstances, a defendant could flee during trial or after verdict, but before sentencing, and thereby delay the time for noting an appeal for an inordinately extended period without adverse consequence for his appeal. The same rationale which supports the rule where flight occurs during appeal has equal force where a defendant flees prior to sentencing. The reasons justifying refusal of the appeal include: (1) inappropriateness of appellate review for one who displays such disdain for the judicial system; (2) discouragement of escape; (3) deterrence of interference with the efficient operation of the court; and (4) avoidance of unfair prejudice to the government by delay occasioned by appellant's flight. S.H., supra, 570 A.2d at 816; Parrish, supra, 281 U.S. App. D.C at 117, 887 F.2d at 1108; Persico, supra, 853 F.2d at 137. These same reasons justify application of the rule to the circumstances presented here, where appellant absented himself from trial and delayed for several months sentencing and the time for filing a notice of appeal. See Parrish, 281 U.S. App. D.C. at 117, 887 F.2d at 1107; see also United States v. London, 723 F.2d 1538, 1539 (11th Cir.), cert. denied, 467 U.S. 1228, 81 L. Ed. 2d 878, 104 S. Ct. 2684 (1984). *fn3 Therefore, we turn to consideration of whether in the exercise of discretion we should consider the merits of the appeal.

In the circumstances of this case, we find it appropriate to exercise our discretion to consider the merits of the appeal. The principal reason for this Conclusion is that the time that appellant was at large was not of such extended duration that prejudice is likely to result to the government for that reason. See S.H., supra, 570 A.2d at 817. *fn4 Here, the government's witnesses are all trained police officers, who are generally readily available if retrial should prove necessary. Their observations of the crime have been recorded, at least in part. Thus, the difficulty of locating witnesses and the prospect of failing memories are not fair considerations in this case. Cf. Alvarez supra, 868 F.2d at 548 (merits of claimed trial errors not considered where appellant remained at large six years); Persico, supra, 853 F.2d at 138 (appellant waived appeal of evidentiary rulings by remaining a fugitive for ...


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