UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
America, Appellee 1966.CDC.237
Petition for Rehearing En Banc Denied February 13, 1967. Certiorari Denied, June 12, 1967, 388 U.S. 915, 87 S. Ct. 2133, 18 L. Ed. 2d 1359.
Edgerton, Senior Circuit Judge, and Fahy and Burger, Circuit Judges. Burger, Circuit Judge, (concurring). Edgerton, Senior Circuit Judge (dissenting).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FAHY
At a joint trial *fn1 the three appellants were convicted of first degree murder in violation of those provisions of D.C.Code § 22-2401 which defined that crime to include the killing of another in perpetrating or attempting to perpetrate an offense punishable by imprisonment in the penitentiary. Appellants were convicted of killing Lonnie Page in perpetrating or attempting to perpetrate the offense of housebreaking, defined and its punishment by penitentiary imprisonment prescribed in D.C.Code § 22-1801. They were also convicted of housebreaking. The jury was not agreed on the punishment for the murder, and this required the court to sentence the appellants either to death or imprisonment for life, as provided in D.C.Code § 22-2404 (Supp. V, 1966). Sentences of life imprisonment were imposed. We affirm.
According to evidence at trial deceased had been engaged in buying and selling stolen property. On October 2, 1964, he was found dead on the kitchen floor of the house in which he lived. There were three bullet wounds in his body. The house appeared to have been ransacked. Television sets and other articles had been gathered near the front door, and milk had been spilled on the floor in the room where the body lay, the significance of which will appear.
Evidence of how the fatal shooting of Page occurred was supplied by the testimony at trial of Willie B. Whitmire, a participant in events surrounding the homicide. He testified that he and the three appellants, the latter armed, met in the early morning of October 2 at the house of appellant Irby. They drove to an alley near the home of Page and waited until Page left. They then broke into the house. Whitmire took up station at the back door as a lookout while appellants gathered television sets and radios and placed them near the door. In the midst of these activities Page was seen returning. Appellant Brown sent Whitmire to another room to prevent a little girl who was there from saying anything. She had already been tied and a pillowcase had been slipped over her head, which prevented her from seeing Whitmire. He put his hand over her mouth. As Page entered through the back door appellant Brown accosted him. Page threw a container of milk. Page was then shot several times. Whitmire ran out the front door to the car. Appellants Brown and Jones followed. Irby ran a different way.
The occurrences thus described in the testimony of Whitmire as an eye witness were corroborated by physical details otherwise in evidence, *fn2 and support the verdicts based on the conclusion that the shots about which Whitmire testified caused the wounds of which deceased died.
This testimony of Whitmire was objected to on the ground that the police learned of him and his possible participation in the homicide through statements made to the police by appellant Brown during his unlawful detention. It is contended accordingly that Whitmire's evidence was inadmissible under the "fruit of the poisonous tree" doctrine. *fn3
The trial judge held a hearing, without the jury being present, to enable the judge to rule upon this objection to Whitmire's evidence. He overruled the objection. Aside from a question as to the standing of appellants Irby and Jones to press an objection to evidence said to be the fruit of the unlawful detention of someone other than themselves, see Wong Sun v. United States, 371 U.S. 471, 491-492, 83 S. Ct. 407, 9 L. Ed. 2d 441, we are clear that Whitmire's live testimony from the witness stand at trial in November 1965 was admissible even if Whitmire's involvement were first learned from an inadmissible statement of Brown made in October 1964.
In Wong Sun v. United States, supra at 487-488, 83 S. Ct. at 417, the Supreme Court held that narcotics, obtained by officers as the result of a statement made by an accused consequent upon the unlawful invasion of his bedroom, were inadmissible at his trial. However, the Court stated that the case was not one,
in which the connection between the lawless conduct of the police and the discovery of the challenged evidence has "become so attenuated as to dissipate the taint." Nardone v. United States, 308 U.S. 338, 341
In another aspect of the same case the Court held that when an illegal arrest was followed by release of the arrestee on his own recognizance, after his "arraignment," and he had voluntarily returned several days later to make a statement, "the connection between the arrest and the statement had 'become so attenuated as to dissipate the taint.'" Id. at 491, 83 S. Ct. at 419.
The "attenuated taint" doctrine, expressed in Nardone, has been applied by this court in Gregory v. United States, 97 U.S.App.D.C. 305, 231 F.2d 258, and, more importantly, in Smith v. United States and Bowden v. United States, 117 U.S.App.D.C. 1, 324 F.2d 879. In Smith and Bowden the testimony of an eyewitness to a murder and robbery was objected to on the ground that the witness' existence and identity were learned by the police from statements of the two defendants made during their illegal detention. The trial court, with the subsequent approval of this court, ruled that the statements of the defendants were inadmissible. However, ...