Greenwell v. United States

• Decision Date: 17 January 1963
• Docket Number: No. 17121.,17121.
• Citation: 317 F.2d 108,115 US App. DC 44
• Parties: Harold W. GREENWELL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

115 US App. DC 44, 317 F.2d 108 (1963)

Harold W. GREENWELL, Appellant, v. UNITED STATES of America, Appellee.

No. 17121.

United States Court of Appeals District of Columbia Circuit.

Argued October 24, 1962.

Decided January 17, 1963.

Petition for Rehearing Denied May 6, 1963.

Mr. Dean F. Cochran, Washington, D. C. (appointed by this court) for appellant.

Mr. Tim Murphy, Asst. U. S. Atty. for appellee. Messrs. David C. Acheson, U. S. Atty. Frederick G. Smithson, Asst. U. S. Atty., and Nathan J. Paulson, Asst. U. S. Atty., at the time the brief was filed, were on the brief for appellee. Mr. Frank Q. Nebeker, Asst. U. S. Atty., also entered an appearance for appellee.

Before Mr. Justice REED, retired,^* BAZELON, Chief Judge, and WRIGHT, Circuit Judge.

Petition for Rehearing En Banc Denied May 6, 1963.

BAZELON, Chief Judge.

Our indigent appellant was apprehended in Fort Worth, Texas, pursuant to a warrant charging robbery of a bank in the District of Columbia. After jury trial he was convicted and sentenced to serve six to eighteen years in prison and to pay a fine of $2,000.

His chief complaint on this appeal relates to the trial court's denial of his requests to subpoena certain witnesses in support of his various motions to exclude confessions and physical evidence obtained from him in Fort Worth.

The Government's and appellant's versions of the relevant facts — as developed in the pre-trial documents and trial testimony — were diametrically opposed. The Government's testimony was that appellant, after being advised of his right to remain silent and to contact an attorney, voluntarily admitted that he had committed the crime, invited the officers to his mother's house where he led them to the stolen money and a toy pistol, and asked to be taken to the police station where he signed a detailed written confession. Appellant, on the other hand, testified that he was "grabbed . . . in the back of his pants," threatened with physical violence, slapped in the face when he refused to confess orally, and tricked or beaten into signing the written confession; moreover, he denied consenting to the "search" of his mother's home.

Early in the proceedings, court-appointed counsel attempted — in a variety of ways — to obtain support for appellant's story. He requested authorization to conduct certain investigations in Fort Worth at Government expense,¹ but this was denied. He moved, pursuant to Rule 15, Fed.R.Crim.P., to take depositions, at Government expense, of appellant's sister and sister-in-law who had witnessed the search and who appellant claimed would testify that no consent was given.² This too was denied. And he moved, pursuant to Rule 17, Fed.R. Crim.P.,³ to subpoena, at Government expense, a number of individuals and documents, including: (1) a certain cell-mate in the Fort Worth jail who, he claimed, "could testify as to the facial appearance of the defendant after being questioned and as to the statements of the defendant after being questioned and as to the statements of the defendant that he was threatened and beaten, said statements being made while under the effects of such duress"; (2) certain newspaper reporters who, he claimed, "were let into the interrogation room immediately after the interrogation ceased and could testify as to the visual effects of the cuffing around which would indicate that any admission or confession would be involuntary"; and (3) certain records of the jail which he claimed "should have a photograph of defendant when booked that should show the effects of being cuffed around during interrogation." This motion was also denied, on the ground that the requirements of Rule 17(b) had not been met, since "no showing had been made that the evidence of the witnesses is material to the defense and that the defendant cannot safely go to trial without such."

At trial the Government produced the arresting officers from Fort Worth, each of whom testified to the Government's version of the facts. Appellant testified to his opposing version, but without any supporting testimony or evidence. The confessions and the fruits of the "search" were ultimately admitted into evidence, and appellant was convicted.

In this appeal we face the question whether the denial of the requested subpoena was error.

An indigent defendant's request for subpoenas is governed by Rule 17(b), Fed.R.Crim.P. It requires that each motion to subpoena a witness at Government expense be supported by an "affidavit in which the defendant shall state the name and address of each witness and the testimony which he is expected by the defendant to give if subpoenaed, and shall show that 1 the evidence of the witness is material to the defense, that 2 the defendant cannot safely go to trial without the witness and that 3 the defendant does not have sufficient means and is actually unable to pay the fees of the witness. * * *"

Here, appellant filed a supporting affidavit averring that the witnesses sought would corroborate his own version of the facts which, if believed, would require suppression of the confessions, the money and the gun. Thus the averments showed the materiality and necessity of the proposed witnesses' testimony. It is apparent, however, that the trial judge construed the Rule to require that the averments be substantiated by the production of testimonial or documentary evidence.⁴ We disagree. We think the Rule contemplates that the required showing "that 1 the evidence is material * * *" and "that 2 the defendant cannot safely go to trial without the witness" may rest upon averments in the supporting affidavit, as does the required showing "that 3 the defendant does not have sufficient means * * *." Thus if the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted, unless the averments are inherently incredible on their face, or unless the Government shows, either by introducing evidence or from matters already of record, that the averments are untrue or that the request is otherwise frivolous.⁵

It follows that the court erred in denying at least some of appellant's requests for subpoenas. We are unable to say, however, whether the error was prejudicial or harmless. Therefore, without reversing the conviction, we remand the case to the District Court with directions to determine, from evidence produced by affidavits or pursuant to procedures prescribed by Rules 15(c) and 17(b), whether the witnesses sought would have presented testimony affecting any issue in the case. If testimony affecting any jury issue (e. g., voluntariness of the confessions) would have been presented, appellant is entitled to a new trial. If testimony affecting any issue for decision by the court (e. g., Mallory⁶ or illegal search and seizure) would have been presented, then the witnesses will be subpoenaed for a hearing on any such issues and a new trial ordered if the hearing shows that evidence admitted at trial should have been excluded.⁷ In the absence of such matters, the conviction will stand. Since we are remanding for a determination whether an error was harmless or prejudicial, ambiguities or uncertainties should be resolved in favor of the accused. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Any determination of the trial judge will, of course, be appealable to this court.

So ordered.

Mr. Justice REED (dissenting).

This appeal presents problems regarding the preparation by an indigent defendant of his defense to criminal charges. Congress and the federal courts have been sympathetic through the years with the need to accept financial responsibility for those who are unable to pay the costs of their witnesses.¹ Provision for the assumption of these expenses by the Government is now included in Rule 17(b) of the Federal Rules of Criminal Procedure, which reads:

"(b) Indigent Defendants. The court or a judge thereof may order at any time that a subpoena be issued upon motion or request of an indigent defendant. The motion or request shall be supported by affidavit in which the defendant shall state the name and address of each witness and the testimony which he is expected by the defendant to give if subpoenaed, and shall show that the evidence of the witness is material to the defense, that the defendant cannot safely go to trial without the witness and that the defendant does not have sufficient means and is actually unable to pay the fees of the witness. If the court or judge orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government."

In addition, Rule 15(c) also authorizes the district court to direct the Government to bear the expense of taking depositions for an impecunious defendant. See also Proceedings in forma pauperis, 28 U.S.C. § 1915 (1958 ed.).

Under these provisions, the defendant with the assistance of his appointed counsel must furnish evidence satisfactory to the district court of his need to summon witnesses for his defense or to take depositions at distant points. The procedure is not put into operation on mere assertion of need, but requires the exercise of discretion by the district court judge. In an early case interpreting the statute antecedent to Rule 17(b), the Supreme Court stated:

"The third assignment is based upon the refusal of the court to grant an application by the prisoner for process for three witnesses, such process to be served at the expense of the government. The trial was begun on the 27th of May, 1890; the application was not made until the 31st day of May, just before the defendant was called as the last witness in his own behalf. It would probably have delayed the trial a number of days to send the process into the Indian Territory, make service of it there, and bring in these

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