United States v. Anderson, 7962.

Citation366 A.2d 1098
Decision Date12 November 1976
Docket NumberNo. 7962.,7962.
PartiesUNITED STATES, Appellant, v. Willie C. ANDERSON and Archie L. Lonon, Appellees.
CourtCourt of Appeals of Columbia District

Garey G. Stark, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U.

S. Atty., John A. Terry and Richard L. Cys, Asst. U. S. Attys., Washington, D.C., were on the brief, for appellant.

Jeffrey R. Freund, Washington, D.C., appointed by the court, for appellee Lonon.

Melville Feldman, Washington, D.C., appointed by the court, for appellee Anderson.

Before KELLY, PICKLING and HARRIS, Associate Judges.


This government appeal pursuant to the provisions of D.C.Code 1973, § 23-104(a)(1) is from a homicide case in which one of several investigating officers failed to preserve his notes of an initial interview of Special Police Officer James Saunders, a guard at the Veterans Administration Hospital where the incident occurred. In a pretrial hearing the court determined that the notes fell within the purview of the Jencks Act, 18 U.S.C. § 3500 (1970), and concluded that the nonproduction of the lost material warranted the sanction of a prospective bar to the witness' trial testimony.1 We reverse.

Introductory facts essential to an understanding of the issues are that in the early afternoon of December 6, 1972, a murder was committed in the drug ward of the Veterans Administration Hospital. Special Police Officer Saunders, responding to a radio call for assistance, encountered two men and a woman hurriedly leaving the building where the shooting had just occurred. When they failed to stop, Saunders engaged in pursuit and ultimately apprehended appellee Anderson.

Officers Willie Morris and William Prudden of the Metropolitan Police Department arrived at the scene about 1 p.m., and began an investigation which included the questioning of Officer Saunders. They were joined by Officers Melvin Johnson and Warner Washington, who interviewed two members of the hospital staff, Mr. Schift and Miss Bates. In his interview of Saunders, Morris apparently took several pages of notes which he gave to Prudden for delivery to the Department's homicide section. Several hours later, Prudden was interviewed by Detective Paul O'Brien, and signed a statement concerning the details of his investigation of the homicide, but both he and the detective testified that they could not remember whether he had surrendered Morris' notes of the initial interview of Saunders. At 2:40 p.m. that afternoon, the homicide section also questioned Saunders, who signed a two-page statement recounting his recollections of the incident.2 As a result of the investigation, appellees were charged with first-degree murder, felony murder, second-degree burglary while armed, and second-degree burglary. D.C.Code 1973, §§ 22-2401, -1801(b), and -3202.3

A pretrial hearing was held to determine, inter alia, the possible applicability of the Jencks Act to the notes taken by Officers Morris, Johnson, and Washington, the originals of which apparently were lost or thrown away.4 The court heard the testimony of Morris, Prudden, Johnson, and Washington, as well as that of Detective O'Brien and Lt. John J. Moriarity, their supervisor. There was no testimony from Saunders or any of the other prospective government witnesses the interviews of whom had resulted in the missing notes.5

The court held the Jencks Act's sanctions inapplicable to the unavailability of the notes which Officers Johnson and Washington had taken of the information provided by Mr. Schift and Miss Bates. It concluded that the material did not fall within the statutory concept of a "statement" [see 18 U.S.C. § 3500(e)], and further suggested that its unavailability was neither prejudicial to the defendants nor the result of negligence or bad faith on the part of the officers.

As for the loss of Morris' notes of his interview of Saunders, however, the court reached a contrary conclusion. Pointing to the fact that Morris acknowledged that he had written several sheets of notes in an effort to take down "substantially everything" that the witness said, and that the interview had been conducted over a period of up to 15 minutes, the court concluded that the notes were distinguishable from the abbreviated information which can result from the initial contact between a witness and an officer anxious to begin pursuit of the perpetrator of the offense. It characterized the notes as "preservable" material within the purview of the Jencks Act, and, concluding that there was "[n]o satisfactory explanation" for their unavailability, imposed the sanction of a total prospective bar to Officer Saunders' testimony at the upcoming trial. It is that order from which the governemnt appealed.

For purposes of our resolution of this appeal we assume the validity of the trial court's finding that the Morris notes constituted a substantially verbatim statement of the witness Saunders which was producible under the Jencks Act. It is the court's rationale in reaching its decision to bar Saunders' testimony at trial which we question, for in ruling that appellees were prejudiced by the government's inability to produce Morris' notes the trial judge stated that he was "satisfied that there's no document prepared by any police officer of record which contains the information as secured from Officer Saunders. . . ."6

See, e.g., Moore v. United States, D.C. App., 353 A.2d 16 (1976). Strangely enough, the trial judge reached this conclusion by comparing Saunders' verbatim statement to the homicide section with that of Officer Prudden. It is difficult to see, however, how the fact that the substance of Morris' notes were not incorporated in Prudden's statement necessitated the prospective striking of Saunders' trial testimony in this case.

As noted above, Officer Morris arrived at the Veterans Hospital and spoke to Saunders about 1 p. m., shortly after the homicide. According to Morris' testimony at the hearing, Saunders told him:

There was a car that may have been involved in the shooting. It was a white Oldsmobile. And that there was a woman in it and another fellow that was in the car that he tried to stop as they came out of the entrance, running out of the entrance of the Veterans Administration Hospital, but was not able to stop them. They got in the car and drove out of the grounds of the hospital on Irving Street, where they made a left and went west on one of the blocks of Irving. One of the suspects was a patient in the hospital who also tried to get in the same automobile, but wasn't able to. He was able to catch this particular person and to arrest this particular person.7

Scarcely an hour and three quarters later Saunders gave virtually the identical information, and more, to the homicide section in a verbatim statement which he signed and acknowledged as correct, a copy of which had been given appellees.8 Clearly the substance of Saunders' statement to Morris was also contained in Saunders' own verbatim statement to homicide less than two hours later.9 Under these circumstances, the possibility of prejudice to appellees because of the loss of Morris' notes was either minimal or nonexistent. As the trial court concluded with respect to the Bates and Schift statements, "[I]t would appear that the (appellees) have received that fresh type of recollection that the courts speak of as possessed by a witness at a date and time near the offense."

We conclude that in this case the imposition of the ultimate sanction under the Jencks Act was unwarranted and that the court erred in barring the testimony of Officer Saunders. See United States v. Perry, 153 U.S.App.D.C. 89, 471 F.2d 1057 (1972).







Statement began at 2:40 p. m.

                   male, 31 years of age, residing
                   at 4501 Clermont Drive, Northeast
                   Washington, D.C., apartment
                   201, telephone 529-2734, employed
                   by the Veterans Hospital Special
                   Police Force, telephone 483-6666
                   I did not know the man that was
                   I do not know the person or persons
                   that killed him

It was between 12:00 and 1:00 p. m., today, I was out front of the main entrance of the hospital directing traffic, when I received a call from the operator on my two way radio, to go to 3-C-North, stat, (that means as fast as I can).

On my way inside the building just as I was going inside the building at the main entrance, I was met by two men and a woman that were leaving the building and they were running. I didn't know what was going on but figured they were involved someway by the way they were acting and I tryed to stop them but they would'nt stop. They kep right on out the front door and right on running.

I started up to 3-C-North then I changed my mind, I met this other guard by the name of Parker, no its Parks and he told me that one of the subjects was wearing a white leather jacket. At this time I remembered that one of the three subjects that had run from the building had been wearing a white jacket but it was not leather, and I still did'nt know what had really happened.

I ran back out side then and the one wearing the white jacket was sitting inside the car at the front entrance. The same lady that had run out earlier was standing along side the car on the passenger side. The fellow in the white jacket was seated on the passengers side inside of the vehicle. This other fellow had run all the way down the bottom of the hill to Irving street, to where the entrance to the hospital was. I got into the patrol car which was parked in front and I went after him. I caught up to him on Irving Street, at the entrance and I told him to get into the car that I was taking him back to the hospital. He stated "he was going home". I asked him what had happened and he stated "some big guy had come up and...

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7 cases
  • Middleton v. United States, 9341.
    • United States
    • Court of Appeals of Columbia District
    • April 20, 1979
    ...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 docum......
  • Fields v. United States, 8769.
    • United States
    • Court of Appeals of Columbia District
    • January 3, 1977
    ...U.S.App.D.C. 265, 539 F.2d 744 (1976). This court has evidenced like misgivings in lost Jencks statement cases. See United States v. Anderson, D.C.App., 366 A.2d 1098 (1976); and Moore v. United States, D.C.App., 353 A.2d 16 Alternatively, a question is whether the lost notes consituted a s......
  • District of Columbia v. McConnell, 81-1443.
    • United States
    • Court of Appeals of Columbia District
    • July 18, 1983
    ...District of Columbia v. Onley, 399 A.2d 84 (D.C.App. 1979); United States v. Shields, 366 A.2d 454 (D.C.App. 1976); United States v. Anderson, 366 A.2d 1098 (D.C. App. 1976), we have thus far left open the question of its scope. United States v. Shields, supra, 366 A.2d at 456. We hold here......
  • Edwards v. United States, 82-1592.
    • United States
    • Court of Appeals of Columbia District
    • November 8, 1984
    ...denied, 440 U.S. 926, 99 S.Ct. 1258, 59 L.Ed.2d 481 (1979); Fields v. United States, 368 A.2d 537, 542 (D.C.1977); United States v. Anderson, 366 A.2d 1098, 1109 (D.C. 1976). But cf. United States v. Jackson, supra, 450 A.2d at 425 ("mere fact that the notes are `rough' does not defeat a Je......
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