Cooper v. United States
| Decision Date | 31 October 1975 |
| Docket Number | No. 6986.,6986. |
| Citation | 353 A.2d 696 |
| Parties | Nelson L. COOPER, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Robert Case Liotta, Washington, D.C., appointed by this court, for appellant.
James N. Owens, Asst. U. S. Atty. with whom Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, and John A. Terry and Daniel J. Bernstein, Asst. U. S. Attys., were on the brief, for appellee.
Before GALLAGHER, YEAGLEY and HARTIS, Associate Judges.
Appellant was convicted by a jury of carrying a pistol without a license (D.C. Code 1973, § 22-3204), five counts of assault with a dangerous weapon (id., § 22-502), and negligent homicide (id., § 40-606). He challenges: (1) the quashing of his subpoena for police personnel files; (2) the exclusion of certain testimony relating to an alleged telephoned threat on appellant's life; and (3) the exclusion of testimony about appellant's reputation for truth and honesty. We find no error in the quashing of the subpoena, and conclude that the errors which were committed with respect to points (2) and (3) were harmless.1
On the night of December 4, 1971, off-duty police officer Louis Boyd was driving south on South Capitol Street, taking friends home. Among his four companions was Jerry Morris, another off-duty police officer. Boyd had his revolver with him; Morris did not.
Boyd reached the south end of the South Capitol Street bridge. Suddenly a red Chevelle, driven by appellant Cooper, pulled in front of his car and stopped. Boyd slammed on his brakes to avoid a collision.2 The two cars remained stopped for a few seconds. Boyd saw one of the three passengers in the Cooper car "lean back, stick his arm toward the center of his waist area, and then lean forward to the driver." Boyd then told his companions that the people in the other car "might have a gun."
Boyd took his police identification folder and badge out of his pocket, held them in his left hand, and started to pull around Cooper's car. As Boyd and his companions moved slowly past, Cooper pointed a revolver at them and called: "Go on down the road or I'll blow your mother-fucking head off."3
Boyd drove off rapidly and told his passengers to get down on the floor. He took out his revolver and placed it in his lap. Boyd continued on, for a mile or a mile and one-half, until he heard "a pinging sound of something striking the car." He then stopped his car in the middle of the road, leaving an open lane on each side in the hope that the Cooper car would go by. Instead of passing Cooper stopped his car a few feet to the right of Boyd's car, with its front even with Boyd's rear fender.
Boyd got out and moved quickly to the left rear side of his car, holding his badge in his left hand and his gun in his right. Leaning over his trunk, he faced the other driver and said twice: Appellant then pointed a gun out of his window and fired at Boyd.4 As Boyd ducked, Cooper fired a second shot, which struck the car door. Boyd then fired two shots at Cooper.
More shots followed, from both sides. During the gunfire, Officer Morris got out of Boyd's car; he was shot in the leg. According to a witness who had been driving along South Capitol Street, Morris grabbed his leg and fell back into his seat. Then he got up, steadying himself on the door, and moved between the two automobiles to the front of Boyd's car. The witness said Morris fell, and that "at about the same time that he fell the automobile, the red automobile [Cooper's], started moving forward." Another witness, who watched the incident from a nearby Bolling Air Force Base barracks, also saw Morris fall.5 No one saw Morris alive again.
After several shots had been fired from each side, Cooper pulled his arm back into the car. Officer Boyd, correctly believing Cooper's gun to be empty, then ran to Cooper's car and fired one shot inside. The bullet apparently wounded Cooper. Cooper started to drive away, and swerved into Boyd's car. Boyd ran a short distance away, and turned to fire a final shot at the Cooper car. He watched as it drove over a sign on the median strip and proceeded south along South Capitol Street.
Boyd returned to his car, and drove off in pursuit of the Cooper vehicle. No one noticed the absence of Officer Morris. They had driven a short distance when Boyd noticed something ahead that "looked like a bundle of rags lying there in the street". Driving closer, he saw that it was the body of Jerry Morris. Morris had been run over and dragged for 300-400 feet, resulting in his death from miltiple fractures and internal injuries.
A few minutes later, police found Cooper. He was wounded, sitting in the passenger seat of the car he had been driving. Clothing fibers and hair from Officer Morris subsequently were found on the undercarriage of the car. The gun Cooper had used was found in a wooded area, where Cooper said he had thrown it.
At trial, Cooper claimed self-defense. He testified that an unidentified man had telephoned a threat on his life to his place of work some four to six weeks before the shooting incident, and that the threat had been relayed to him by both a fellow employee and his employer. Cooper stated the belief that the threat had come from a rival for the affections of a woman whom he had been dating. Earlier that same evening, according to Cooper, he saw the woman's mother, who told him that her daughter was at the rival's apartment. Cooper and the woman's three sisters then went to the apartment. When they arrived, they suspected foul play, and they summoned police. Cooper testified that when. the officers entered, "[t]here was blood, and the apartment was torn all up, like it had been a fight, but she wasn't there." He said he made a missing person report to the police the next day, but to his knowledge, she had not been found.
Cooper testified that the combination of the threat and his girl friend's disappearance made him apprehensive for his safety and caused him to carry a gun in his car. On the evening of the incident in question, Cooper transferred the gun to a friend's car, when he and the friend decided to visit the missing girl's mother.
Appellant subpoenaed the police personnel files of Officers Boyd and Morris.6 The government moved orally at trial to quash the subpoena. The government asserted a claim of privilege for the files, except those portions made public by statute.7 The Metropolitan Police Department's Deputy General Counsel summarized the three basic reasons for the policy of confidentiality as "the privacy of the officer, the normal personnel executive interest of the department, and also the discipline of self-policing aspect of an investigation report that might be included." Defense counsel stated that he wished to look through the files seeking two types of material: (1) any indication of prior violent acts by Officers Boyd or Morris for use as evidence that they may have been the aggressors on this occasion, and (2) information about promotions or investigations of weapon firings which might show that Boyd had a motive for perjury.8
Defense counsel was unable to proffer that he had any reason to believe that either of those two types of material would be found in the officers' personnel files. The trial judge offered to inspect the files in camera to determine whether they contained relevant, admissible evidence. Defense counsel rejected that offer.9 The court then quashed the subpoena on the grounds that "[i]t's really nothing more than a fishing expedition".10
We conclude that the trial court properly sustained the challenge to the subpoena, and hence find it unnecessary to resolve the privilege question. See United States v. Nixon, 418 U.S. 683, 698, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Under Superior Court Criminal Rule 17(c), a subpoena duces tecum may be quashed if production of the materials sought would be "unreasonable or oppressive." In considering this standard, courts generally have followed the formulation expressed in United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y.1952). The Iozia test, as endorsed by the Supreme Court in the Nixon case, requires a party seeking a subpoena duces tecum to show the following:
(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a "fishing expedition." United States v. Nixon, supra 418 U.S. at 699-700, 94 S. Ct. at 3103.11
In this case, the trial court effectively applied the standard enunciated in Iozia. The following exchange illustrates the record support for the finding that the defense was merely "fishing":
Enforcement of a subpoena under Rule 17(c) is committed to the sound discretion of the trial judge. Unless the trial court's finding is either arbitrary or without record support, its decision as to the necessity for the subpoena will not...
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