Moore v. United States

• Decision Date: 03 February 1976
• Docket Number: No. 8080.,No. 8069.,8069.,8080.
• Citation: 353 A.2d 16
• Court: D.C. Court of Appeals
• Parties: Calvin MOORE, Jr., Appellant, v UNITED STATES, Appellee. Christopher JOHNSON, Appellant, v. UNITED STATES, Appellee.

353 A.2d 16

Calvin MOORE, Jr., Appellant, v UNITED STATES, Appellee.

Christopher JOHNSON, Appellant, v. UNITED STATES, Appellee.

No. 8069.

No. 8080.

District of Columbia Court of Appeals.

Argued November 20, 1974.

Decided February 3, 1976.

Frederick H. Weisberg, Washington, D. C., appointed by the court, for appellant Johnson. James E. Mundy, Washington, D. C., appointed by the court, for appellant Moore, adopted brief in No. 8080.

Nicholas Gilman, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and John P. Hume, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY, PICKLING and HAR-RIS, Associate Judges.

KELLY, Associate Judge:

Appellant Moore was convicted by a jury of armed robbery, D.C.Code 1973, §§ 22-2901, -3202, and was sentenced to three to ten years imprisonment. Appellant Johnson was convicted of robbery, D.C. Code 1973, § 22-2901, for which he was imprisoned for eighteen months to ten years. The victim of the robbery, James E. Gibbs, identified appellants seventeen days after the event in a chance street encounter near the courthouse. This identification was the only evidence linking appellants with the offense. No proceeds of the robbery were recovered, no usable fingerprints were taken from Gibbs' car which appellant Johnson had attempted to start during the robbery, and no other evidence of appellants' participation in the crime was presented. The issue on appeal is whether the trial judge erred in refusing to impose the sanctions of the Jencks Act, 18 U.S.C. § 3500 (1970), by striking Gibbs' testimony when the government failed, upon request, to produce a police officer's notes which were taken in an interview immediately following the robbery and contained the witness' initial description of the robbers.¹

Complainant Gibbs testified at trial that there were two robbers; that the gunman was "on the same plane" with him which was about five feet nine inches in height, and that his companion only came up to the gunman's shoulder. Officer James D. Nance, who took the report of the robbery, testified that he had written down Gibbs' description of the robbers;² that his notes had been misplaced, and that Gibbs had told him, among other things, that both robbers were five feet five inches tall.³ After Officer Nance completed his direct testimony, defense counsel requested the production of the notes containing the witness' description of the robbers. The government failed to produce the notes and counsel moved to strike the complainant's testimony. The court summarily held that the notes were not Jencks material, but when reminded of this court's decision in Banks v. United States, D.C. App., 305 A.2d 256 (1973), and of the Police Department Regulations requiring the preservation of descriptive notes taken at the scene, a brief inquiry was made of the officer which developed that the notes could not be found. The court nevertheless denied the motion to strike without indicating whether the ruling was that the notes were not Jencks material or that the government's inability to produce the witness' statement due to its loss did not require the imposition of sanctions under the Act. Because the basis of the court's ruling is uncertain we remand the record for a full hearing on the question.

For the Jencks Act to apply and for the right of discovery to exist under the Act, the records at issue must be "statements" within the meaning of the Act.⁴ And when the statement of a witness is oral, a transcription of the statement must be "substantially verbatim" and "recorded contemporaneously". The transcription must be a continuous, narrative recording rather than mere selective notations or excerpts from the oral statements.⁵ Documents which substantially incorporate notes or records of oral statements of a witness may satisfy the production requirements of the Act depending on the reliability of the reporting process and the absence of prejudice to the defendant.⁶

The District of Columbia Police Department promulgated General Order Series 601, No. 2, effective May 26, 1972, amended September 1, 1972, which requires the preservation of statements of prospective witnesses and specifically states that "this includes an officer's rough notes of the description of the perpetrator of a crime given by the victim or witness prior to the arrest of a suspect."⁷ The materials are to be maintained in investigative case jackets and kept in secure file cabinets until the case to which they relate has been disposed of or for a three-year period if no criminal proceedings are initiated. Thus the government has, on the record in this case, met its obligation of setting up proper procedures for preservation of discoverable material.⁸ But Officer Nance did not comply with the prescribed procedure. He testified that although he could not remember what happened to the notes, it was his practice to put such material in his locker and that when he looked for the notes for the trial, he was unable to find them. Thus, the officer's actions with regard to the preservation of the notes were negligent.

Before deciding whether sanctions should have been imposed, however, it is necessary to know whether the notes were Jencks Act statements and whether the substance of the notes was incorporated in other documents. Police notes in a particular case have been regarded as potentially Jencks Act statements. Hardy v. United States, D.C.App., 316 A.2d 867, 870 & n. 3 (1974). In other cases these notes have been thought to fall outside the Jencks Act because they are "rough",⁹ "general", "sketchy", and/or "hasty",¹⁰ and thus not verbatim statements of the witness. In a recent case eyewitness' descriptions included in a lost court-work jacket were characterized in dictum as falling in this category when the court stated:

[I]t has been held that rough, investigative notes taken by police officers at the scene of a crime are not "substantially verbatim" statements within the coverage of the Jencks Act. United States v. Scriber, 163 U.S.App.D.C. 36, 43, 499 F. 2d 1041, 1048 (1974).¹¹

The production of on-the-scene notes is in keeping with the purpose of the Act, to aid the search for truth by facilitating impeachment of the government's witnesses.¹² There is no doubt that the notes in question here related to a crucial issue and that they might have served to discredit the testimony of the complaining witness. As in United States v. Bundy, 153 U.S.App.D.C. 191, 193, 472 F.2d 1266, 1268 (1972) (Leventhal, J., concurring), the notes might have permitted the defense to undercut subsequent identifications of appellants by showing that their actual appearances differed from the complainant's initial description. As the court there stated, "[t]he initial description of an assailant by the victim or other eyewitness is crucial evidence, and the notes taken of that description should be kept and produced." Id. at 192, 472 F.2d at 1267.

Even where the statements are Jencks material, however, the rule of production under the Act is subject to an exception if the substance of the notes was incorporated in other documents. Officer Nance testified that everything he had written down was broadcast on the original flash lookout. A transcript of the lookout was available, but was not produced.¹³ The burden of producing notes or explaining why this cannot be done is on the government, United States v. Augenblick, 393 U.S. 348, 355-56, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), and if the government wishes to meet its burden, it must come forward with an explanation, or, here, with material to bring it within the exception. Since it has not done so, the record is remanded for a hearing to determine whether Officer Nance's notes constitute a statement producible under the Jencks Act and the correspondence of the lookout to the information transcribed by Officer Nance.

So ordered.

HARRIS, Associate Judge (dissenting):

The majority's elevation of the missing rough notes to a level which warrants remand is, in my opinion, contrary to both law and reason. Further, when the few relevant facts of record are analyzed, the remand order is seen to present a rather striking example of an exercise in futility. Accordingly, although the majority opinion appears somewhat innocuous, I respectfully dissent. Because of the importance of the underlying issue presented, I do so in some detail.

I

I begin by recognizing the fundamental principle that the unifying objective of our adjudicatory system is the determination of truth. See, e.g., Gregory v. United States, 125 U.S.App.D.C. 140, 143, 369 F.2d 185, 188 (1966). The majority correctly observes that the Jencks Act seeks to serve this objective "by facilitating [the] impeachment of the government's witnesses." (At 19). However, in their willingness to apply the provisions of that statute to the rough investigatory notes of a police of ficer, my colleagues minimize the government's evidence against appellants — perhaps to justify their apparent concern as to the missing piece of paper. Emphasis is placed upon a lack of fingerprints and the failure to recover the proceeds of the crime. The jury, however, obviously found the identification testimony of the complaining witness to be wholly convincing. I agree, and conclude that such evidence is more than adequate to sustain the convictions. Since the majority apparently is willing to sacrifice the whole of the victim's testimony as the price to be paid for the officer's inadvertence, I believe it is appropriate to set out the facts which formed the basis of the identifications, and thus of the jury's determinations of guilt.

One night at 11:15 p. m., the complaining witness parked his car on a well-lighted street on his way to work on the night shift at the Government Printing Office. Two men approached him as he parked his car. Sensing trouble, he hastened to get out of his car. He had...