Sullivan v. United States
| Decision Date | 26 June 1979 |
| Docket Number | No. 12635.,12635. |
| Parties | William Joseph SULLIVAN, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
David C. Niblack, Washington, D.C., appointed by the court, for appellant. Mary Ellen Ashton (LS # 1746), Keith K. Miller (LS # 1923), law student counsels, and James M. Doyle, Supervising Atty., were on briefs, for appellant.
John H. Korns, II, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty. and John A. Terry and Peter E. George, Asst. U. S. Attys., Washington, D.C., were on brief, for appellee.
Before KELLY, NEBEKER and MACK, Associate Judges.
Appellant, together with his two brothers, was convicted in Superior Court of simple assault under D.C.Code 1973, § 22-502, arising out of an automobile accident. On appeal, he argues that the trial court erroneously 1) failed to strike the trial testimony of the complaining witness following a Jencks Act hearing; 2) admitted into evidence the entire hospital record of the complaining witness; and 3) failed to permit cross-examination of the complaining witness on the issues of his bias and motive.
On February 1, 1977, appellant, while driving his car in which his two brothers were passengers, collided with a van operated by complainant Thomas Ritter. After the collision, appellant, his brothers and Mr. Ritter met outside the vehicles where a fight ensued. Mr. Ritter claimed that he was struck by appellant while attempting to see the latter's car registration. Appellant claimed that he struck the complainant only after complainant grabbed and threw punches at him. As a result of the fight, Ritter was taken to the hospital, while appellant and his brothers were arrested by police officers called to the scene.1
The government's first witness at trial was Thomas Ritter. Following his direct examination by the government, defense counsel, acting pursuant to provisions of the Jencks Act, 18 U.S.C. § 3500 (1970), requested production of any statements made by Ritter to police. The government, in response, denied the existence of any such statements. Then, on cross-examination of the complainant, the following exchange occurred:
Thereafter the trial court, although questioning the indecisive nature of the witness' answers, held a hearing, outside the jury's presence, to determine whether there were statements made by complainant to the police which would be subject to disclosure to the defense under the Jencks Act.2
At the hearing, two Metropolitan Policemen, Officers Stradford and Rau, testified. Both had been present at the scene of the accident and fight between the Sullivans and complainant. Both stated that they neither spoke to Mr. Ritter there, nor saw any other officer who did. Officer Rau, who like the complainant suffered injury at the scene of the assault, admitted that he did speak with Ritter at the hospital where they were both being treated. He added, however, that he took no notes of the conversion.
At the close of the officer's testimony, defense counsel argued to the trial court that a prima facie showing of the existence of Jencks Act statements had been made. Defense counsel therefore requested that, in the absence of testimony from any of the other officers present at the scene of the alleged assault (some of whom Officer Rau identified by name in his testimony, and some of whom he could not remember) the trial testimony of the complaining witness be stricken.3 The trial court, stating that it believed Officers Stradford and Rau, found that no Jencks Act statements were made by complainant, and denied defense counsel's request.4
We cannot agree with appellant that the trial court committed reversible error in not applying the sanction of the Jencks Act.
Certainly, the production at trial by the government of police notes, made at the scene of a crime, is in keeping with the purpose of the Jencks Act,5 "to aid in the search for truth by facilitating impeachment of the government's witnesses." Moore v. United States, D.C.App., 353 A.2d 16, 19 (1976) (footnote omitted). However, where the existence of such notes has been alleged by the defense following a witness' direct examination and denied by the government, it is the affirmative duty of the trial court to determine who is correct,6 after examining all the available evidence.7 The factual finding of the trial court as to the existence or not of Jencks Act material may be disturbed on review only if clearly erroneous. Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963); March v. United States, D.C.App., 362 A.2d 691, 702 (1976).
The trial court, reacting to what was defense counsel's attempt to establish a prima facie case, that there existed police notes of the statement of this complaining witness, promptly held a Jencks hearing to "require the government to come forward with evidence to answer that case." Williams v. United States, D.C.App., 355 A.2d 784, 788 (1976), citing Campbell v. United States, 365 U.S. 85, 96, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961). At the hearing, the government called two witnesses, both of them policemen present at the scene of the alleged assault, who testified that neither they nor to their knowledge any other officers recorded any remarks made there by the complainant. After the two officers testified, the trial judge found as follows:
There is no reason for me to sit up here and think that either one of the witnesses is telling a lie.
He told me — this officer [Rau] told me that he didn't take it [complainant's statement]. I believe him. He should know. The prosecutor told me he didn't have any statements. I believe him. You [Defense Counsel] are entitled to ask the officers. You did exactly right. I am satisfied that there is no statement. . . . I will give you all the latitude you want to call any of the police officers — eight or nine, I understand — to come in and testify as to any statement.
* * * * * *
[Complainant] used the words, he believed, all the time. It was also said that at the time his head was — he was taken to the hospital. He was bleeding. Blood was in his eyes. There is a question in my mind as to whether he knows about what happened there [at the scene of the crime].
It was entirely proper for the court, in weighing the credibility of the witnesses, to find that the officers' testimony overcame any assumption or suggestion that Jencks Act statements of complainant existed. Moreover, under these circumstances the trial court was not required to compel the government to search out and produce other officers present at the scene of the alleged assault to testify at the hearing. "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), quoting Palermo v. United States, 360 U.S. 343, 353, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). The scene of the crime was by all accounts one of confusion: Some officers were investigating the accident; others were occupied with the fight between the Sullivans and complainant Ritter. The names of most of the police personnel present at the scene were unavailable: Neither government counsel nor the witness Stradford could supply them, Rau offered only two, and complainant was unable to identify the officer to whom he might have made any statements. Under these circumstances, it was not clearly erroneous for the trial court to find that no Jencks Act statement of complainant existed, without hearing additional testimony.
Appellant also argues that complainant's hospital records, made after the alleged assault, were improperly admitted into evidence. First, he maintains that the recorded out-of-court statements of complainant's condition, offered at trial to prove the truth of what they asserted, were pure hearsay. He points out that the Business Records Act, 28 U.S.C. § 1732 (1970), which might arguably have permitted the introduction of those statements at trial as an exception to the rule against hearsay, was repealed upon enactment of the Federal Rules of Evidence in 1975. And he argues that Fed.R.Evid. 803(6), which continues the business records exception in federal district court, does not apply to Superior Court.
The business records exception, however, remains codified, not only in Fed. R.Evid. 803(6), but also in Super.Ct.Civ.R. 43-I(a), which states that,
Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility. The term "business", as used in this section, includes business, profession, occupation, and calling of every kind. (Added June 30, 1975.)8
Rule 43-1 is applicable to criminal cases in Superior Court....
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