Strickland v. United States, 9342.

• Decision Date: 03 July 1978
• Docket Number: No. 9342.,No. 10014.,9342.,10014.
• Citation: 389 A.2d 1325
• Parties: Willie STRICKLAND, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1325

389 A.2d 1325

Willie STRICKLAND, Jr., Appellant, v. UNITED STATES, Appellee.

No. 9342.

No. 10014.

District of Columbia Court of Appeals.

Argued December 9, 1976.

Decided July 3, 1978.

Rehearing and Rehearing En Banc Denied September 29, 1978.

Richard S. Greenlee, Public Defender Service, Washington, D.C., for appellant.

Frederick H. Weisberg, Public Defender Service, Washington, D.C., at time case briefed and argued, also entered an appearance for appellant.

Mary H. Weiss, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, and Daniel J. Bernstein, Asst. U. S. Attys., Washington, D.C., were on the brief, for appellee.

Before KELLY, PICKLING^* and HARRIS, Associate Judges.

KELLY, Associate Judge:

Appellant Strickland here seeks reversal of his convictions on four counts of first-degree murder and one count of possession of a dangerous weapon.¹ Although he raises a number of claims in support of his bid for relief, we find no reversible error and affirm.²

On January 16, 1973, the bullet-ridden body of Charles D. Coleman was found in Rock Creek Park just off the 1900 block of Park Road, N.W. Two weeks later, on January 30, members of the fire department discovered the remains of Michael White in a garage at 1474 Clifton Street, N.W. The bodies of two other murder victims, Theodore J. Moore and Yale D. Harris, were discovered, respectively, in a ditch south of The Plains, Virginia, on February 13, and in an alley behind 2003, 18th Street, N.W., on February 14, 1973. One Jesse Martin was arrested for murder on May 1, 1973, after police identified his thumbprint on a note found on Moore's body. Confronted with this evidence, Martin made several statements to the police implicating appellant in all four homicides and Hubert Hackney in three of the killings. He admitted, as well, his participation in the final two murders. Appellant was arrested on May 8, and indicted on May 23, 1973, for the four homicides and for carrying a dangerous weapon. He went to trial on February 13, 1974, but at his request a mistrial was declared because of the prejudicial opening statement of counsel for codefendant Hackney.

Thereafter, on June 3, 1974, the Strickland and Hackney trials were severed and appellant's retrial commenced on January 7, 1975. On January 16, the jury found him guilty as charged.

I

Appellant contends that the government's nondisclosure of a homicide squad detective's notes was in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the Jencks Act, 18 U.S.C. § 3500 (1970), and thus mandates a new trial or at least a remand for an evidentiary hearing. These arguments were advanced and rejected by the trial court in appellant's motion for a new trial based on newly discovered evidence.

At the outset, we note that the decision to grant or deny a motion for new trial based on newly discovered evidence is entrusted to the sound discretion of the trial court, and will not be disturbed on review absent a clear showing of abuse of that discretion. United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562 (1946); Quick v. United States, D.C.App., 316 A.2d 875 (1974); Heard v. United States, D.C. App., 245 A.2d 125 (1968); United States v. Gaither, 142 U.S.App.D.C. 234, 440 F.2d 262 (1971). See Super.Ct.Cr.R. 33. Although we are satisfied that the trial judge did not abuse his discretion here, we nevertheless address appellant's contention in this regard point by point.

Appellant first posits that the failure of the prosecutor to turn over, pursuant to a request for "all Brady material", an impeaching statement made by a government witness necessitates a new trial. While merely impeaching evidence will not normally support a motion for a new trial, Huggins v. United States, D.C.App., 333 A.2d 385 (1975); Heard v. United States, supra; Thompson v. United States, 88 U.S. App.D.C. 235, 188 F.2d 652 (1951), such evidence can be the basis of a motion for a new trial where the credibility of a witness may be determinative of guilt or innocence. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Furthermore, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. at 1196.

In United States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2402 (1976), it was held that when there is only a general request for Brady material, such as in the instant case,

if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. [Footnote omitted.]³

Applying this test to the record before us, we conclude that the omitted evidence creates no reasonable doubt as to appellant's guilt.

The statement in question, witness Brenda Greenel's assertion to Police Detective Kilcullen that she did not remember seeing Charles Coleman the night he was killed, contradicted her trial testimony that she was with appellant, Michael White, Coleman, and appellant's girl friend on the night of the killing. Appellant contends that had the jury known of this contradiction, Greenel's trial testimony as to an argument between appellant and Coleman that night over Coleman's alleged robbery of White's narcotics (the proffered motive for Coleman's murder), might very well have been disregarded, and appellant's participation in the killing disbelieved. This contention ignores the overwhelming evidence of appellant's guilt, however, including his admission to Jesse Martin that he shot Coleman to death with a .38 caliber pistol in Rock Creek Park because Coleman had robbed White of some narcotics; the medical examiner's corroboration of Martin's testimony that Coleman was killed by ten shots from two guns; witness Angela Bannister's testimony that during the first week of February 1973, appellant entrusted her with a .38 caliber pistol subsequently determined to be the murder weapon; witness Jean Boyd's and Martin's identification of that .38 caliber gun frequently carried by appellant; appellant's admission on cross-examination that he had used the same gun in a robbery; and Emma Coleman's narrative of appellant's bizarre behavior at her brother's funeral. Given this evidence, we find that consideration of Ms. Green-el's conflicting statements yields something far short of reasonable doubt.

Appellant also argues that the nondisclosure was in violation of the Jencks Act because Detective Kilcullen's notes constituted discoverable statements which were not produced at trial. For the Jencks Act to apply, the records at issue must be "statements" within the meaning of the Act. Here, where the statement of the witness, Brenda Green-el, was oral, a transcription of the statement must be "substantially verbatim" and "recorded contemporaneously."⁴ Moreover, mere selective notations or excerpts from the whole of the oral statement will not satisfy the production requirements of the Act. Palermo v. United States, 360 U.S. 343, 352-53, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959); Moore v. United States, D.C.App., 353 A.2d 16, 18 (1976). The manner in which Detective Kilcullen recorded Ms. Green-el's remark can at best be described as a mere selective notation or excerpt. Kilcullen himself characterized his notes as "miscellaneous" and he unequivocally asserted that they were not verbatim.⁵ The remark in question was recorded as a portion of rough notes from three separate interviews with Ms. Green-el over a twoday period. Although police notes have been regarded as potentially Jencks material, Hardy v. United States, D.C.App., 316 A.2d 867, 870 n. 3 (1974), we have also said that

these notes have been thought to fall outside the Jencks Act because they are "rough", "general", "sketchy", and/or "hasty", and thus not verbatim statements of the witness . . . [Moore v. United States, supra at 19 (footnotes omitted).]

Accordingly, we are unpersuaded by appellant's first assignment of error.

II

Appellant next contends that the twenty-month delay between his arrest and trial violated his constitutional right to a speedy trial.

Barker v. Wingo, 407 U.S. 514, 529, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which places the ultimate burden of assuring that criminal cases are promptly tried on the courts and on the government, establishes a four-pronged balancing test to determine whether this burden has been met in any given case. The courts are advised to consider the length of the delay, the reasons for the delay, the assertion of the right to a speedy trial by the accused, and the resultant prejudice to the accused in assessing the constitutional claim, id. at 530, 92 S.Ct. 2182, and we do so here.

Well-established general guidelines are that delay of a year or more between arrest or indictment and trial gives prima facie merit to an accused's claim that his right to a speedy trial has been denied.⁶ The burden then shifts to the government to justify the delay,⁷ and the more complex and serious the charge, the easier it will be for the government to meet this burden. Barker v. Wingo, supra at 531, 92 S.Ct. 2182; United States v. Holt, 145 U.S.App. D.C. 185, 448 F.2d 1108, cert. denied, 404 U.S. 942, 92 S.Ct. 292, 30 L.Ed.2d 257 (1971). Failure to meet this burden requires dismissal of the indictment. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Barker v. Wingo, supra, 407 U.S. at 522, 92 S.Ct. 2182.

The length of the delay in the instant case, twenty months,...