Fields v. United States

• Decision Date: 03 January 1977
• Docket Number: No. 8769.,8769.
• Citation: 368 A.2d 537
• Parties: Donald M. FIELDS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

368 A.2d 537

Donald M. FIELDS, Appellant, v. UNITED STATES, Appellee.

No. 8769.

District of Columbia Court of Appeals.

Argued November 12, 1975.

Decided January 3, 1977.

Louis Seidman, Public Defender Service, Washington, D. C., for appellant.

Hamilton P. Fox, III, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Asst. U. S. Atty., Washington, D. C., and Peter K. Mair, Asst. U. S. Atty., Seattle, Wash., were on the brief, for appellee.

Before NEBEKER, YEAGLEY and MACK, Associate Judges.

Opinion for the court by Associate Judge NEBEKER.

Concurring opinion by Associate Judge YEAGLEY at p. 543.

Dissenting opinion by Associate Judge MACK at p. 544.

NEBEKER, Associate Judge:

This appeal arises from a judgment of the Superior Court after a jury trial finding defendant-appellant, Donald M. Fields, guilty of first-degree burglary while armed (D.C.Code 1973, §§ 22-1801(a), -3202), and armed robbery (D.C.Code 1973, §§ 22-2901, -3202). We must decide whether under the Jencks Act (18 U.S.C. § 3500) the victim may not testify, as to identification, where a police officer's handwritten notes made at a post-arrest, on-scene identification confrontation (showup) were negligently lost. Testimony as to the showup was precluded, but otherwise the victim testified fully. We affirm.

A restaurant owner was robbed at gunpoint of half the evening's receipts (approximately $1,000, one-half being in $20 bills) that he had taken to his home. During the episode, the victim was required to lie on the floor while one of the robbers stood near his face. That man wore unique shoes like the ones worn by Fields at the time of his arrest shortly thereafter (the shoes were two-toned brown with a dent in one of the toes). The family of the victim was also terrorized. The victim immediately reported the crime to the police and described the clothing, including a bandanna used as a mask, and the physical appearance of the assailants. A few minutes later the police brought Fields before the victim, Fields matching the description previously given. Fields had been arrested a short distance away as he stood beside his car that had run out of fuel. The victim recognized on Fields the unique shoes worn by one of his assailants. He also recognized Fields' other clothing, hair, and physique. An amount of money in $20 bills equalling about one-half of the stolen receipts was seized from Fields' person. The red bandanna that had been described by the victim, and included in the broadcast as part of the description, was seen in Fields' automobile and seized.¹

A number of policemen present at the showup took rough notes. One officer later left the police force; his notes were lost. Other notes taken at the showup and other statements were produced at trial. The victim later identified Fields at a lineup. Over objection, the trial court permitted testimony to be given as to the lineup identification as well as an in-court identification. It excluded testimony as to the showup.

Fields contends that the Jencks Act required the trial court to strike all of the complaining witness' identification testimony since the one officer's showup notes could not be produced by the government. He also contends that the trial court erred in admitting testimony as to his lineup and in-court identifications on the theory which he argues has no place in the so-called Jencks issue—that an independent source or capacity for identification existed. We cannot agree.

The independent source exception to the exclusion of untrustworthy or overly suggestive identification testimony is based on the thesis that if it is otherwise shown to be credible, and subject to cross-examination, it is not scarred by improper statesponsored identification procedures. The identification should thus be admitted in the quest for truth. United States v. Wade, 388 U.S. 218, 239-42, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The basis for the trial court's holding here appears to be the victim's highly credible ability, from the crime encounter, to identify Fields' hairline and physique in addition to the bandana and the highly significant unique shoes. There was testimony by the arresting officer that Fields was wearing those shoes a few minutes after the robbery, and, as observed, the bandana was found in the automobile where he was arrested.

We hold that the trial judge was eminently correct in looking to an independent, credible identification capacity before forbidding all identification testimony. As we have said, the Jencks Act was intended to aid in the search for truth by permitting access to prior statements of government witnesses for possible impeachment. Hardy v. United States, D.C.App., 316 A.2d 867, 869 (1974), citing United States v. Perry, 153 U.S.App.D.C. 89, 94, 471 F.2d 1057, 1062 (1972). If Fields were correct that elimination of all the victim's identification testimony was the only course open to the trial judge, notwithstanding reliable independent identification which is subject to cross-examination, the search for truth would be defeated by the happenstance of a subsequent loss of the officer's notes. If a witness can make an identification (in court or at a lineup) from an ability acquired otherwise than from a state-sponsored proceeding about which testimony may not be received, neither the policies underlying the constitutional rule of exclusion nor the Jencks Act requires that that identification be barred. When an independent reliable capacity for identification exists, the automatic sanction of striking all such testimony would irrationally defeat the search for truth, for it is possible, in any event, to cross-examine the witness on that independent capacity.² In short, there is no rational basis to impose a Jencks Act sanction in this instance.

The Jencks Act was passed by Congress in 1957 in response to the Supreme Court's decision in Jencks v. United States, 353 U. S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). A major concern of Congress was to limit and to regulate defense access to government papers. Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L. Ed.2d 1287 (1959). After a government witness has testified on direct examination, the court on the defendant's motion shall order the government to produce any statement of the witness in the government's possession relating to the witness' testimony. "The purpose of the Jencks Act was to provide the defense with a means of impeaching a government witness by means of a prior inconsistent statement . . . while not allowing an unrestrained search through government files." United States v. Catalano, 491 F.2d 268, 274 (2d Cir. 1974)

The Jencks Act does not mention the negligent loss of a statement; it only contemplates a situation where the government elects not to produce a statement that it has in its possession. The government's need to make this election in some cases may be dictated by considerations of national security or the safety of covert law enforcement operatives. However, the inability to produce a statement not in the government's possession because of an inadvertent as distinguished from a deliberate destruction is not an election against production. United States v. Perry, supra at 95-96, 471 F.2d at 1063-64; cf. United States v. Carpenter, 166 U.S.App.D.C. 358, 510 F.2d 738 (1975). In Hardy v. United States, D.C.App., 316 A.2d 867, 870 (1974), this court said:

Where a discoverable statement has been lost or destroyed and hence is not in the government's possession, a trial court must weigh certain factors in exercising its discretion whether to strike a witness' testimony. E. g., United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969); United States v. Bundy, [153 U.S.App.D.C. 191, 472 F.2d 1266 (1972)]; United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971). As stated in [United States v.] Perry, supra (153 U.S.App.D.C. at 99, 471 F.2d at 1067):

[U]nless either in the instant or subsequent cases the interest of justice will be furthered by penalizing the Government, then [the penalty of striking the testimony of a witness] is not to be invoked automatically as in an adversary game. In order to exclude testimony, there should be a showing of either negligence or purposeful destruction accompanied by either bad motive or bad judgment.

A remedy, on the assumption that one was needed, for the negligent loss of a Jencks Act statement was designed in United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642, aff'd after remand, 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971), where tape recordings of conversations between the defendants and an undercover officer in a narcotics case had been lost. A year later that court determined that in the absence of due process considerations, non-negligent loss of Jencks Act material is not a ground for imposition of Jencks Act sanctions. United States v. Perry, supra, at 98, 471 F.2d at 1066. The court further noted that even if the trial court does find some degree of negligence, "it need not automatically invoke the Jencks Act." Id. at 100, 471 F.2d at 1068. A recent decision by that court reveals further reluctance to adhere to the sanction threat announced in Bryant. United States v. Quiovers, 176 U.S.App.D.C. 265, 539 F.2d 744 (1976). This court has evidenced like misgivings in lost Jencks statement cases. See United States v. Anderson, D.C.App., 366 A.2d 1098 (1976); and Moore v. United States, D.C.App., 353 A.2d 16 (1976).

Alternatively, a question is whether the lost notes consituted a statement within the meaning of the Jencks Act. The implication of the trial judge's ruling that the victim could not testify as to the showup is that she found the notes to be a Jencks Act statement. That issue does not appear to have been explored with the care necessary when the question revolves around rough notes taken on the scene of a crime.³ Such notes have been held as...