Jones v. United States

• Citation: 343 A.2d 346
• Decision Date: 07 August 1975
• Docket Number: No. 8049.,8049.
• Parties: Earl W. JONES, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

343 A.2d 346

Earl W. JONES, Appellant, v. UNITED STATES, Appellee.

No. 8049.

District of Columbia Court of Appeals.

Argued March 11, 1975.

Decided August 7, 1975.

Frederick H. Weisberg, Washington, D. C., appointed by this court, for appellant.

Robert P. Palmer, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, James F. McMullin and Joseph F. McSorley, Asst. U. S. Attys., were on the brief, for appellee.

Before KELLY and KERN, Associate Judges, and PAIR, Associate Judge, Retired.

PAIR, Associate Judge, Retired:

After a jury trial, appellant was found guilty of armed robbery¹ and sentenced to imprisonment for a term of from one year to life.² On this appeal he claims error in the denial of his pretrial motion to suppress as evidence the testimony of James Daniel the complaining witness (complainant) and the testimony of Police Officer Freto, one of the officers who investigated the robbery complaint. Error is claimed also in the trial court's refusal to order a mistrial because of remarks made by the prosecutor during his closing argument to the jury. Finding the claims of error to he insubstantial, we affirm the judgment of conviction.

Before the commencement of the trial the prosecutor furnished defense counsel a transcript of the grand jury proceedings, a copy of the "grand jury summary" and copies of completed police department report forms PD 163 and 251. Concerned that there might be other written material which had not been disclosed or produced, defense counsel requested and was granted a "Jencks" hearing.³ It was disclosed at this hearing that Officer Freto made notes of his initial conversation with the complainant and that the notebook in which the notes were recorded had been misplaced or lost.

Defense counsel then moved the court to suppress, as a sanction compelled by the Jencks Act, 18 U.S.C.A. § 3500,⁴ any testimony by the complainant and Officer Freto.⁵ The trial court inquired of defense counsel whether a matter of identification was involved, observing that no request had been made for a "mini trial" pursuant to the Wade-Gilbert-Stovall doctrine. Defense counsel assured the court that no such question was involved. Nevertheless the trial court conducted a hearing on the motion to suppress at which there was testimony in substance as follows. Shortly after midnight on January 12, 1973, the complainant was assaulted and robbed by two men as he walked to his home after purchasing a box of chicken from the "Loop", a nearby restaurant. The shorter of the two men (appellant) confronted complainant and the other man approached from the rear. Recognizing appellant as a man he had seen in the restaurant as he purchased the box of chicken, complainant exclaimed: "[I]t can't be you, I just left you at the Loop." Complainant remembered that he had seen appellant on three or four prior occasions when he patronized the restaurant, and remembered also that appellant always had on a short gray coat, wore sunglasses and that a black scarf was tied about his head.

When assaulted, complainant grappled with appellant seizing him by the lapels of his gray coat but was soon wrestled to the ground as the second man caught him from behind, struck him on the head with a gun, thrust the gun in his mouth and threatened to "blow [his] tonsiles [sic] out." Complainant was robbed of his watch, money, and other articles of value and as the two men fled, complainant called out, "Shorty, I will see you again." Following the assault and robbery, complainant proceeded to his home and called the police. Officer Pressley responded and after talking with complainant, completed PD Form 251 on which appellant was described as "short, dark complexion, medium build, wearing a three-quarter length coat."

Officer Freto also responded to the robbery complaint. According to his testimony, complainant after relating the circumstances of the robbery, described appellant to be of stocky build, wearing a three-quarter length black leather coat and large sunglasses with chrome rims. As the complainant talked, Officer Freto made notes in his notebook which he subsequently lost or misplaced.⁶ A summary of the information recorded by Officer Freto in his notebook was, on the same day, incorporated in an investigative report which was made available at the hearing.

The complainant was determined to find the two men who assaulted and robbed him. To this end he returned on the following day to the Loop Restaurant area. While standing across the street from the restaurant he observed appellant who was wearing the same gray coat and black head scarf as the night before. Complainant alerted two police officers seated in a police car parked near the restaurant and identified appellant as one of the two men who assaulted and robbed him the night before. As the officers stood by, complainant walked up to appellant and said, "Do you remember me . . . Shorty?" Appellant was then arrested.

Complainant denied telling Officer Pressley that appellant was of medium build and denied telling Officer Freto that appellant was wearing a short black leather coat. He admitted telling both Officer Freto and an investigator for the Public Defender Service that appellant was short and of stocky build and admitted telling the investigator that appellant was wearing sunglasses, a short gray coat and that a black scarf was tied about his head.

At the conclusion of the suppression hearing and after argument of counsel the trial judge ruled that, although there was clearly negligence in the failure to secure the notebook as required by the Police Department General Order,⁷ there had been no showing of gross negligence or bad faith. The court ruled further that there had been no showing of prejudice or even the possibility of prejudice since complainant could be and in fact was impeached by Officer Freto's testimony respecting the statements made as the notes were recorded. Accordingly, the motion to supress the testimony of complainant and Officer Freto was denied.

A jury was then impanelled and at the trial complainant, Officers Pressley and Freto, and the investigator of the Public Defender Service repeated their testimony as adduced at the pretrial hearing. In addition, there was testimony by Officer Wallace, the arresting officer, as to the circumstances surrounding the arrest.⁸

The main thrust of the defense was that the complainant was mistaken in his identification of the appellant as one of the men who assaulted and robbed him. Stressed in the cross-examination of complainant were discrepancies in his description of appellant, i. e., whether he was of medium or stocky build and whether he was wearing a short gray cloth coat or a short black leather coat.⁹ The issues of credibility thus posed were submitted to and determined by the jury adversely to appellant and a verdict of guilty as charged was returned.

We notice at the outset that there is no provision in the Jencks Act for a pretrial determination of the sanction, if any, to be imposed when Jencks' material is lost or misplaced.¹⁰ In fact, the clear language of the Act would seem to preclude any such pretrial determination.¹¹

In a proper case the Jencks Act permits the exclusion of the testimony of the witness whose statements were recorded. In this case it seems to have been thought that the Act also permits the exclusion of the testimony of the officer who recorded the statements. This, of course, is not so. See Hardy v. United States, D. C.App., 316 A.2d 867, 870 (1974), and United States v. Maynard, 155 U.S.App.D. C. 223, 230, 476 F.2d 1170, 1177 (1973).

We will assume, however, for the purpose of this opinion that appellant simply misconceived the reach of the Jencks pretrial hearing concept which, no doubt, accounts for his election to stand on the record made at the pretrial hearing rather than follow at the trial the procedure prescribed by the Jencks Act. In any event, no objection was interposed by the prosecutor to the pretrial suppression hearing and the trial court apparently approved the procedure.¹²

In refusing to suppress as evidence (strike at trial) the testimony of the complainant, the trial court exercised the discretion vested in it in the administration of the Jencks Act as enunciated in United States v. Perry, 153 U.S.App.D.C. 89, 95, 471 F.2d 1057, 1063 (1972). In that case the court said:

Viewed in its proper perspective, the judicial process is a search for truth, not an adversary game, and therefore the Jencks Acts is not a mandate compelling the trial judge to strike (or bar) a witness' testimony when a previously made statement, irrespective of the reason, cannot be produced by the Government. . . . Whether the testimony of a witness is stricken or barred in advance, however, is in the discretion of the trial judge if eliminating the witness' testimony would restrict the search for truth rather than assist it in the instant and future cases.

As the Supreme Court has pointed out, "[T]he administration of the Jencks Act must be entrusted to the `good sense' and `experience' of the trial judges subject to `appropriately limited review of appellate courts'". United States v. Augenblick, 393 U.S. 348, 355, 89 S.Ct. 528, 533, 21 L.Ed.2d 537 (1969), citing Palermo v. United States, 360 U.S. 343, 353, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959).

Appellant contends, however, that the circuit court has announced a standard of strict liability for negligent loss of material producible under the Jencks Act, a standard and which does not permit consideration of the degree of negligence involved in the loss of the material Dr the likelihood of prejudice. What the circuit court stated in this connection was that

. . . in the future, federal investigatory agencies must promulgate and rigorously enforce rules designed to preserve all discoverable evidence and that of prejudice to the defense slight, it can nonpreservation caused by failure to follow the...