U.S. v. Smith

• Decision Date: 23 October 1975
• Docket Number: No. 74-1446,74-1446
• Citation: 521 F.2d 957,172 U.S.App.D.C. 297
• Parties: , 172 U.S.App.D.C. 297, 1 Fed. R. Evid. Serv. 22 UNITED STATES of America v. Joseph E. SMITH, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 957

521 F.2d 957

31 A.L.R.Fed. 437, 172 U.S.App.D.C. 297,

1 Fed. R. Evid. Serv. 22

UNITED STATES of America v. Joseph E. SMITH, Appellant.

No. 74-1446.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 14, 1975.

Decided Oct. 23, 1975.

Roy F. Perkins, Jr., Washington, D. C. (appointed by this court), for appellant.

Michael A. Pace, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, James F. McMullin, and John J. Mulrooney, Asst. U. S. Attys., were on the brief, for appellee.

Before WRIGHT and ROBINSON, Circuit Judges, and DAVIS, ^* Associate Judge.

Opinion for the court filed by Circuit Judge WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

Appellant was convicted in the District Court of robbery in violation of 22 D.C.Code § 2901 (1973) and sentenced to eight years imprisonment pursuant to the Youth Corrections Act, 18 U.S.C. § 5010(c) (1970). In this court he charges the District Court with reversible error in refusing to admit into evidence Police Department Form 251, the official report of the police officer who received the initial complaint of the robbery, and the transcript of that officer's subsequent radio broadcasts. He further claims the court compounded its error by failing to admit the P.D. Form 251 following a specific request from the jury. We agree the District Court was in error, and we remand the case to the District Court for further proceedings.

I

Appellant was accused of robbing at gunpoint one James Williams, a taxi driver, in his cab shortly before 8:00 a. m. on March 18, 1971. Appellant was charged with armed robbery, 22 D.C.Code §§ 2901, 3202 (1973), robbery, 22 D.C.Code § 2901, and assault with a dangerous weapon, 22 D.C.Code § 502 (1973). At trial Williams testified that he picked appellant up in the vicinity of 58th and East Capitol Streets and was told to take him to 529 51st Street, N. E., a boarded-up and deserted apartment in a two-building complex. Upon arriving at that address, appellant allegedly displayed a pistol and demanded Williams' money. Williams turned over $28.00 in bills and coins, whereupon his assailant left the cab demanding that Williams drive on and not look back. Disobeying this instruction, Williams waited until his assailant was out of sight and then backed his cab up in time to see the robber enter an apartment in the building in the complex facing that containing 529. Because of the angle at which he was watching, Williams could not be certain exactly which apartment was entered, but he testified that it had to be one of two possibilities. One of the two was 527 51st Street, where appellant lived with his mother and sisters.

After circling the block Williams was able to locate and stop a police car driven by Officer John T. Carr. He reported the robbery to Officer Carr and described the robber. Officer Carr recorded this information on his Form 251 and then broadcast the report to the police dispatcher. Thereupon Carr and Williams returned to the apartment complex where they were joined by other officers who had monitored the radio dispatch. Because the officers misunderstood Williams' directions as to which building the robber had entered, they were concentrating their attention on the building containing Apartment 529 when appellant emerged from Apartment 527. Officer Roy J. Miller, who was just leaving Apartment 521, observed appellant's exit and noted that he matched Williams' description. Simultaneously Williams, who was waiting in a police car, noticed appellant and immediately identified him as his assailant, whereupon appellant was arrested. The police never searched appellant's apartment, or sought a warrant to do so, and the money and the gun were never recovered.

At trial the crucial evidence against appellant was Williams' identification. Williams was absolutely certain that appellant was his assailant, testifying not only that he identified him at the second sighting immediately after the robbery, but that he had seen appellant around the neighborhood over a four- or five-year period. Williams testified that he visited with a friend approximately once a week over this period in an apartment in the same complex as appellant's, and that he had frequently seen appellant standing on the street. He testified that he recognized appellant as soon as he picked him up and thus was particularly surprised when the robbery took place, asking his assailant, "You don't know me?" Transcript (Tr.) 19.

Since Williams' identification of appellant was so important to the Government's case indeed, it was virtually the entire case appellant's counsel strenuously tried to impeach Williams' credibility. He did so by attempting to develop inconsistencies between Williams' stated description of the crime and his assailant, and the report as recorded on Form 251 and as broadcast to the police dispatcher. Most of the discrepancies appeared in the Form 251. They were as follows: Williams stated (1) that the robbery occurred prior to 8:00 a. m., Tr. 89, while the form listed the time as 8:05 a. m.; (2) that he picked up his passenger at 58th and East Capitol Streets, Tr. 66-67, while the P.D. 251 gave the pickup location as 50th and East Capitol Streets; (3) that the robber never touched his wallet and change purse, Tr. 66-67, while the form stated that the robber had himself removed the money from these articles; (4) that he told Officer Carr the robber was wearing Hush Puppy shoes, Tr. 87, while the form made no mention of the robber's shoes. In addition, appellant developed inconsistencies between Williams' testimony and the radio broadcast. Williams claimed (1) that assailant had a "boy's haircut," Tr. 68, while the broadcast refers to a "bush"; (2) that the robber had a "light brown" complexion, Tr. 72, while the broadcast refers to "dark" complexion. ¹ Since the defense presented no witnesses, its case was largely dependent upon exploitation of these inconsistencies. ²

When appellant sought to use the Form 251 to impeach Williams, the court refused to allow it into evidence, ruling that it was not his statement, but was hearsay and as such could not be used to impeach Williams. If it was to be admitted at all, it was to be through Officer Carr. ³ Tr. 63-64. At the conclusion of Officer Carr's testimony, however, the court refused to allow admission of either P.D. 251 or the broadcast transcript, ruling that their use was still for purposes of impeachment and, as such, they were inadmissible hearsay. ⁴ Tr. 115-116. The court's comments are set out in full in the margin.

Although the court refused to allow admission of the two documents, it did allow the defense counsel to show P.D. 251 to Williams to refresh his memory about what he told Officer Carr. After reading the form, Williams said, "No, that's not correct at all." Tr. 64. On cross-examination and redirect, he attempted to explain the inconsistencies. ⁵ During that process, and during the subsequent examination of Officer Carr, the contents of the documents were fully aired to the jury. Tr. 64-68, 100, 102, 104-107, 112. At one point the description of the robber contained in P.D. Form 251 was read aloud verbatim. ⁶ Tr 100. The inconsistencies were hammered home to the jury again and again by appellant's trial counsel. ⁷

In addition to presenting Williams and Officer Carr, the prosecution presented the arresting officer, Officer Miller, who identified appellant as the man he arrested after Williams' on-the-scene identification. Tr. 122. Thereafter the Government rested. After the defense motion for judgment of acquittal was denied, appellant rested without presenting any evidence. Tr. 143. The next day, after closing arguments, the Government dismissed the third count of the indictment, assault with a dangerous weapon, and the court charged the jury. ⁸ Tr. 150-171. Several hours later the jury returned with a request for further instruction on the elements of armed robbery and for Defense Exhibit 5, the Form 251. The court denied the latter request, ruling that since the form was not in evidence the jury was not entitled to see it. The court told the jury it would have to rely on its recollection of the form as discussed in court. Tr. 172. The court denied appellant's renewed motion to introduce the documents into evidence. Tr. 179. Shortly thereafter the jury returned a verdict of not guilty on the count of armed robbery and guilty on the count of robbery. Tr. 180.

II

Appellant alleges that the District Court erred in excluding the Form 251 and the broadcast transcript from introduction into evidence. He claims they are admissible as business records and may be used to impeach the credibility of the complaining witness, Williams. ⁹ We agree.

The business record exception to the hearsay rule, unlike most other exceptions, has been codified for some time, ¹⁰ 28 U.S.C. § 1732(a) (1970) and is contained in the new Federal Rules of Evidence (FRE) in a form similar to that in which it appeared in the United States Code. ¹¹ FRE, Rule 803(6). The exception is intended to allow introduction of reliable and accurate records without the necessity of calling every person who made or contributed to the record. A business record is admissible whether or not the maker is available to take the stand, 28 U.S.C. § 1732. ¹² While no case in this circuit has yet so held, at least five other circuits have found that a police record constitutes a business record within the meaning of the Act. See, e. g., Salsberg v. Modern Transfer Co., 2 Cir., 324 F.2d 737 (1963) (Marshall, J.); Bowman v. Kaufman, 2 Cir., 387 F.2d 582 (1967); United States v. Burruss, 4 Cir., 418 F.2d 677 (1969); United States v. Halperin, 5 Cir., 441 F.2d 612 (1971); United States v. Martin, 5 Cir., 434 F.2d 275 (1970); United States v. Wolosyn, 9 Cir., 411 F.2d 550 (1969); United States v. Graham, 6 Cir., 391 F.2d 439, cert. denied, 393 U.S. 941, 89 S.Ct. 307, 21 L.Ed.2d 278 (1968); ...