406 F.2d 960 (D.C. Cir. 1968), 21498, Young v. United States

Docket Nº:21498.
Citation:406 F.2d 960
Party Name:John W. YOUNG, Appellant, v. UNITED STATES of America, Appellee.
Case Date:November 21, 1968
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 960

406 F.2d 960 (D.C. Cir. 1968)

John W. YOUNG, Appellant,


UNITED STATES of America, Appellee.

No. 21498.

United States Court of Appeals, District of Columbia Circuit.

November 21, 1968

Argued July 1, 1968.

Mr. William M. Barnard, Washington, D.C., with whom Mr. Arthur H. Schroeder, Washington, D.C. (both appointed by this court) was on the brief, for appellant.

Mr. John F. Rudy, 11, Asst. U.S. Atty., with whom Messrs. David G. Bress, U.S. Atty., Frank Q. Nebeker and Miss Carol Garfiel, Asst. U.S. Attys., were on the brief, for appellee.

Before FAHY, Senior Circuit Judge, and DANAHER and BURGER, Circuit judges.

DANAHER, Circuit Judge:

Convicted of assault with a dangerous weapon, this appellant has here asserted only one claim of error which need be noticed. During the trial the defense moved for permission to examine testimony before the grand jury given by one Curry, the victim of the assault. Denying the defense motion, the trial judge remarked 'Unless you have some very exceptional reason for asking for it I don't intend to grant the request.' 1

On the totality of the evidence adduced through various witnesses and in light of the jury verdict, it is clear enough that the appellant had used a knife to cut Curry. Apparently there had been marital difficulties between the appellant and

Page 961

his wife. Young testified that he had approached Curry to ask that he leave the wife alone only then to be struck by a tire iron wielded by Curry.

When it developed during the trial that Curry was not to appear, the prosecutor stated that if defense counsel 'wants to agree that Mr. Curry's Grand Jury testimony be read into the record or received in evidence I would have no objection. But I think otherwise he is not entitled to see it.' Defense counsel understandably rejected the proffered stipulation 2 on the ground that it would be 'ridiculous to think that I would stipulate to testimony I haven't read.'

Thereupon, after colloquy with counsel, the trial judge directed that the transcript of Curry's grand jury testimony be sealed as a court exhibit for possible use on appeal. 3

Had Curry testified we would have had before us a very different situation. Under varying circumstances and in many pre-Dennis instances we have made it clear that grand jury minutes of the testimony of a witness who also testified at trial must at the very least be examined by the trial judge in camera. After examination of such testimony, we had pointed out, the trial judge should reveal to counsel any inconsistency that is not plainly immaterial. 4 On occasion we ourselves have examined the grand jury minutes. 5

Although in this case no need for continued secrecy inheres, yet other situations might well present quite different problems. 6 We thus are unwilling to find error as a matter of law, although we have been pressed to say that the Dennis and Allen holdings should be extended to require the disclosure 7 of the grand jury testimony of the non-appearing Curry. No authority had been cited as so holding, and our diligent search has disclosed none.

We think that in the unique circumstances here disclosed the trial judge in the exercise of the broad discretion permitted by FED.R.CRIM.P. 6(e) might very properly have examined the minutes of Curry's testimony to determine whether or not the trial quest for the truth would have been advanced in light of what Curry had said. Had the trial judge thereupon determined that no relevant inconsistency had appeared and no other basis had developed for utilization of the Curry testimony, that very well could have ended the matter.

Page 962

Since the judge had ordered sealed and made part of the record the Curry transcript, we have ourselves examined that material. 8 Singularly unenlightening, the Curry testimony in essence states only that he had been cut by Young while working on his car; he had no knowledge as to why Young had cut him for he had never had an argument with him 'or nothing.' He disclaimed any basis for Young's involving his wife with Curry. He had...

To continue reading