Middleton v. United States, 9341.

Citation401 A.2d 109
Case DateApril 20, 1979
CourtCourt of Appeals of Columbia District

W. Anthony Fitch, Public Defender Service, Washington, D. C., for appellant.

Peter E. George, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and Harry R. Benner, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before GALLAGHER, HARRIS and MACK, Associate Judges.

HARRIS, Associate Judge:

Appellant was convicted in a jury trial of armed robbery, two counts of assault on a police officer while armed, and petit larceny.1 D.C.Code 1973, §§ 22-2901, -3202; 22-505(b); and 22-2202. He alleges four grounds of error: (1) the trial court's incorporation of a notion of reciprocity in its administration of the discovery process; (2) the scope of his cross-examination by the prosecutor concerning a prior offense, and the court's response thereto; (3) the exclusion of expert testimony regarding the statistical frequency of his orthodontic configuration; and (4) the admission of in-court identification testimony by one of the assault victims who had been unable to identify appellant before their confrontation in the courtroom. While we conclude that the trial court erred in certain of its discovery rulings, we deem the error to be harmless. We find no merit in appellant's other contentions, and affirm his convictions.

I

At about 3:00 p. m. one afternoon, two men, one armed with a handgun, robbed a carryout shop in Northeast Washington. While the gunman held the customers and employees at bay, his companion jumped over the counter and rifled the cash register, placing the money in a white bag bearing the word "Cavalier." Minutes after the pair had fled the shop, Metropolitan Police Officers Larry Johnson and Timothy Wilson spotted a man matching the description which they had heard on their radio at a bus stop several blocks from the scene of the robbery. The suspect was carrying a bag marked "Cavalier." When the officers approached the man, a struggle developed for the bag. The suspect's companion joined the fracas, and attempted to fire a pistol point-blank, first at Wilson and then at Johnson, but the weapon failed to discharge.2 Although the two men managed to escape, the officers recovered the gun, the bag containing the cash from the shop, and a wallet belonging to one of the robbery victims. The next day Officer Johnson and one of the customers were shown an array of photographs; both identified appellant as the gunman.

A pretrial hearing was held at which two customers who had been in the shop at the time of the robbery and Officer Johnson described the relevant events and their respective identifications of appellant.3 Following the testimony of one customer, Patricia Bennet, defense counsel made a request for any material which might be subject to the discovery provisions of the socalled Jencks Act. 18 U.S.C. § 3500 (1970). Although the government surrendered a number of documents (see footnote 5, infra), it countered with a request that the defense produce the report of its investigator who had interviewed several prospective government witnesses. The court, expressing a "doctrine of mutuality arising out of the Jencks Act," agreed that discovery should be reciprocal and declared that appellant's receipt of Jencks Act materials would be contingent on defense counsel's surrender of her investigator's report.

After the trial testimony of each of the affected witnesses, defense counsel renewed her requests for Jencks Act materials. (See footnote 7, infra). The court adhered to its previous order of reciprocity. Defense counsel persisted in her refusal to disclose the evidence obtained by the defense investigator, and the disputed documents were not exchanged. (See footnote 8, infra.) Bennet, Burton Powell, and Officer Johnson made in-court identifications of appellant. Their accounts of the robbery were corroborated by Joan Martin and Ellen Israel, two employees of the carryout who were unable to identify appellant.4 Over objection by the defense, the court also permitted an in-court identification by Officer Wilson, who, until seeing appellant in the courtroom, had been unable to identify him as his bus stop assailant.

Appellant's theory of defense was misidentification. He presented three alibi witnesses — his mother, brother, and father — who testified to the effect that he had been at home at the time of the robbery. Defense counsel's proffer of expert testimony concerning the statistical frequency of appellant's orthodontic configuration (his teeth had been mentioned by several of the government's witnesses in their descriptions and identifications) was refused by the court. Finally, during appellant's direct testimony, defense counsel brought out the fact that appellant previously had pleaded guilty to a robbery charge in an unrelated assault. When the government thereafter probed the details of that extrinsic offense on cross-examination, defense counsel moved for a mistrial, but the court ruled that appellant had opened the door to the collateral incident. The jury ultimately returned a verdict of guilty on each of the charges.

II

Appellant's first argument is that the trial court erred in its administration of the discovery process. Appellant sought the production of several documents in the possession of the government which were alleged to fall within the purview of the Jencks Act. The trial court, applying what it called "the doctrine of mutuality," concluded that appellant's right to those documents should be contingent on his surrender of a report by a defense investigator which purported to contain statements by several prospective government witnesses. When defense counsel refused to engage in reciprocal discovery, the court ruled that appellant had "forfeited" his right to the putative Jencks material.

The disputed rulings were in response to opposing discovery requests made during a pretrial hearing on appellant's motion to suppress certain identification testimony. The questioning of the first witness, Patricia Bennet, revealed the existence of material potentially falling within the provisions of the Jencks Act, and defense counsel sought production of the relevant documents for the purpose of cross-examining the witness. See United States v. Anderson, D.C.App., 366 A.2d 1098, 1105 (1976) (Harris, J., concurring); see also United States v. Dockery, D.C.App., 294 A.2d 158 (1972). The government did convey several documents to the defense.5 However, before cross-examination of the witness resumed, the prosecutor, who had learned that a defense investigator had obtained a statement from Patricia Bennet (as well as statements from Joan Martin and Ellen Israel), made a counter-request that the defense produce copies of those statements after each of those three witnesses testified.6 Defense counsel resisted such discovery in reliance upon United States v. Wright, 160 U.S.App.D.C. 57, 489 F.2d 1181 (1973). The trial court responded that Wright was not binding [see M. A. P. v. Ryan, D.C.App., 285 A.2d 310 (1971)], and announced that it would follow a principle of mutuality in resolving the discovery issues. The court rejected defense counsel's argument that neither Super.Ct.Cr.R. 16 nor the Jencks Act provided authority to compel the production of the disputed statements, and also rejected her assertion that to grant the prosecution's discovery request would both violate the doctrine of an attorney's "work product" and impinge on appellant's Fifth Amendment rights. The court concluded that the opposing discovery requests should be handled reciprocally, and declared:

[S]o far as I'm concerned, [the defense] would have to make available the statement from Mrs. Bennet at this time from the doctrine of mutuality arising out of the Jencks Act. . . . [B]y declining to make available your statements, you forfeit your right to the Jencks Act materials.

On later occasions during both the pretrial hearing and the trial, appellant made further requests for Jencks material.7 Much of the requested material was provided to the defense by the prosecution.8 However, with respect to the three witnesses from whom the defense apparently had obtained statements, the trial court adhered to its theory of mutuality, and refused to compel production as long as appellant resisted reciprocal discovery.9

Appellant contends that the trial court erred (1) in ordering the surrender to the government of the statements obtained by the defense investigator; (2) by making appellant's rights under the Jencks Act contingent on his acquiescence in the government's request for discovery; and (3) by declining to apply the statutory sanctions to the government's nonproduction of its putative Jencks material.

We consider first the question of whether the trial court had the authority to order defense counsel (albeit on a reciprocal basis) to surrender to the government the evidence gathered by her investigator. Neither the Jencks Act nor Super.Ct.Cr.R. 16 provides for such discovery. The former is limited to discovery by a defendant of a narrow class of documents in the possession of the government after the declarant-witness has testified at trial. See 18 U.S.C. § 3500(b) and (e) (1970); March v. United States, D.C.App., 362 A.2d 691, 698 n. 9 (1976). There is nothing in either the language of the statute or its legislative history to suggest that Congress contemplated the creation for the government of a similar right of access to information in a defendant's files. See United States v. Wright, supra, 160 U.S.App.D.C., at 65, 489 F.2d at 1189. Rule 16, on the other hand, does provide reciprocal pretrial discovery rights for the government, but only under limited circumstances. See, e. g., United States v. Hodges, 480 F.2d 229...

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