Gregory v. United States, 19599.

Decision Date28 July 1966
Docket NumberNo. 19599.,19599.
Citation369 F.2d 185
PartiesClifton GREGORY, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. John A. Shorter, Jr., Washington, D. C., for appellant.

Mr. Charles L. Owen, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker and William C. Weitzel, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and DANAHER and WRIGHT, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

The indictment against appellant charges five counts — first degree murder,1 second degree murder,2 two robberies,3 and one assault with a dangerous weapon.4 After his motion for severance was denied, appellant was tried and convicted on all counts. We reverse for severance and a new trial.

The indictment covers two separate series of events, both including liquor store robberies. As to the first robbery, the Government relied for identification of the defendant on only one witness, and that witness on the day after the robbery had identified someone other than appellant as the robber. A second witness to the robbery testified that appellant was "definitely not the robber." The Government's evidence as to appellant's participation in the second robbery, which resulted in the murder of the operator of the liquor store, consisted of three witnesses who identified appellant as the robber, while a fourth testified he was not the man. The primary issue presented to the jury as to all counts was identification, the fact of the robberies, the assault and the murder being uncontested.

While we have considered the many allegations of error made by counsel for appellant, this being a first degree murder case we have also made our own study of the record.5 Since the weight of the errors disclosed by the record compels reversal, we shall consider only the principal ones without weighing the effect of each on the outcome of the trial.

I

The prosecutor embarrassed and confounded the accused in the preparation of his defense by advising the witnesses to the robberies and murder not to speak to anyone unless he were present. Six days before the trial began, defense counsel and the prosecutor, Mr. Weitzel, appeared before a motions judge. Defense counsel asked for the judge's assistance because two eye witnesses to the murder and robbery had declined "to talk to me unless Mr. Weitzel is present or unless Mr. Weitzel authorizes him to talk to me." Defense counsel asked the judge to direct Mr. Weitzel to allow the witnesses to talk to him. The court ruled: "I can't direct the Government to permit you to talk to a Government witness."

On the day the trial opened, defense counsel asked for the assistance of the trial judge with respect to his difficulty in interviewing the witnesses to the events on trial. Defense counsel stated to the court that the witnesses had refused to talk to him because "the United States Attorney told them not to talk to us." At this point the prosecutor, Mr. Weitzel, stated: "I instructed all the witnesses that they were free to speak to anyone they like. However, it was my advice that they not speak to anyone about the case unless I was present." Mr. Weitzel further advised the trial court that defense counsel's motion had already been denied by a motions judge, whereupon the trial court stated: "Well, I think that disposes of the matter."

After the prosecutor had completed his opening statement, defense counsel called to the court's attention the fact that, according to the opening statement, several witnesses on the list of witnesses provided defense counsel as required by 18 U.S.C. § 3432 would not be called by the Government. Apparently thinking that if the Government had no use for these witnesses he might have, defense counsel again pointed out that he had not been able to interview these witnesses because "they have been told not to talk to us," and asked the court's assistance at least with reference to interviewing the witnesses on the list the Government would not use. The court stated: "There is nothing I can do about it."

The purpose of 18 U.S.C. § 3432 requiring that in capital cases the defendant be furnished a list of the names and addresses of the witnesses to be called by the Government is to assist defense counsel in preparing the defense by interviewing the witnesses.6 Witnesses, particularly eye witnesses, to a crime are the property of neither the prosecution nor the defense. Both sides have an equal right, and should have an equal opportunity, to interview them. Here the defendant was denied that opportunity which, not only the statute, but elemental fairness and due process required that he have. It is true that the prosecutor stated he did not instruct the witnesses not to talk to defense counsel. He did admit that he advised the witnesses not to talk to anyone unless he, the prosecutor, were present.

We accept the prosecutor's statement as to his advice to the witnesses as true. But we know of nothing in the law which gives the prosecutor the right to interfere with the preparation of the defense by effectively denying defense counsel access to the witnesses except in his presence. Presumably the prosecutor, in interviewing the witnesses, was unencumbered by the presence of defense counsel, and there seems to be no reason why defense counsel should not have an equal opportunity to determine, through interviews with the witnesses, what they know about the case and what they will testify to. In fact, Canon 39 of the Canons of Professional Ethics makes explicit the propriety of such conduct: "A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party." Canon 10 of the Code of Trial Conduct of the American College of Trial Lawyers is an almost verbatim provision.

We do not, of course, impugn the motives of the prosecutor in giving his advice to the witnesses. Tampering with witnesses and subornation of perjury are real dangers, especially in a capital case. But there are ways to avert this danger without denying defense counsel access to eye witnesses to the events in suit unless the prosecutor is present to monitor the interview. We cannot indulge the assumption that this tactic on the part of the prosecution is necessary. Defense counsel are officers of the court. And defense counsel are not exempted from prosecution under the statutes denouncing the crimes of obstruction of justice and subornation of perjury. In fact, the Government's motivation in disallowing defense counsel to interview witnesses apparently stems from factors other than fear of tampering. Recent records in this court reveal that the same policy followed in this case is followed even when the witness involved is a member of the police force. See Holmes v. United States, 125 U.S.App.D.C. ___, 370 F.2d 209 (No. 19, 519, decided July 21, 1966), Tr. pp. 138-139.

A criminal trial, like its civil counterpart, is a quest for truth. That quest will more often be successful if both sides have an equal opportunity to interview the persons who have the information from which the truth may be determined. The current tendency in the criminal law is in the direction of discovery of the facts before trial and elimination of surprise at trial.7 A related development in the criminal law is the requirement that the prosecution not frustrate the defense in the preparation of its case. Information favorable to the defense must be made available to the defense. Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963). Reversals of convictions for suppression of such evidence, and even for mere failure to disclose, have become commonplace.8 It is not suggested here that there was any direct suppression of evidence. But there was unquestionably a suppression of the means by which the defense could obtain evidence. The defense could not know what the eye witnesses to the events in suit were to testify to or how firm they were in their testimony unless defense counsel was provided a fair opportunity for interview. In our judgment the prosecutor's advice to these eye witnesses frustrated that effort and denied appellant a fair trial.

II

The appellant's motion for severance at the opening of trial should have been granted. The court denied the motion because it "comes too late." We think this is an inadequate reason for denying a motion for severance in a capital case. It may be seriously questioned whether it is proper in any capital case to join for trial offenses occurring at different times and places. The danger arising from the cumulative effect of evidence of other offenses on the minds of the jurors is too great to tolerate in such cases.

Moreover, even if one of the robberies in suit had not resulted in homicide, Drew v. United States9 would have required a severance. In Drew the indictment charged a robbery at one High's Ice Cream Store, and an attempted robbery at another, on different days. In reversing the convictions as to both for failure to grant a severance, the court in Drew first pointed to the familiar principle that ordinarily in criminal trials evidence of other crimes is inadmissible since such evidence tends to prove disposition on the part of the defendant to commit crime generally rather than guilt of the specific crime for which the defendant is on trial. 118 U.S.App. D.C. at 15, 331 F.2d at 89. Drew then showed that where evidence of more than one crime is offered to the jury because more than one crime is charged in the indictment, the evidence as to all crimes charged tends to cumulate to prove each, thus prejudicing the defendant in his right to a separate consideration of his guilt or innocence on each charge. 118 U.S.App.D.C. at 17, 331 F.2d at 91.

There is no question here as to whether the joinder...

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