United States v. Bundy, 24803.

• Citation: 153 US App. DC 191,472 F.2d 1266
• Decision Date: 30 June 1972
• Docket Number: No. 24803.,24803.
• Parties: UNITED STATES of America v. Joseph A. BUNDY, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

153 US App. DC 191, 472 F.2d 1266 (1972)

UNITED STATES of America v. Joseph A. BUNDY, Appellant.

No. 24803.

United States Court of Appeals, District of Columbia Circuit.

Argued January 28, 1972.

Decided June 30, 1972.

Mr. Edward L. Genn, Washington, D. C. (appointed by this court), for appellant.

Mr. Robert S. Tignor, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry and David C. Woll, Asst. U. S. Attys. were on the brief, for appellee. Mr. Harold H. Titus, Jr., U. S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges.

PER CURIAM:

On October 24, 1969, Joseph Calan was robbed of 20 one-dollar bills and some small change at gunpoint. He immediately called the police and was interrogated at the scene of the crime by an Officer Brown. Brown immediately relayed a description of the robber over the police radio as "Negro male, eighteen years, * * * wearing a black raincoat and medium green pants."

Within a few minutes, patrol officers Borden and Hall received the broadcast and observed appellant, who was wearing a black raincoat and green pants, stoop behind a parked car when he spotted the police. The officers called him over and recovered 20 one-dollar bills between the curb and the tire of the parked car. After a thorough search of the area, no gun was found. The victim of the robbery, Mr. Calan, identified appellant in a lineup several days later. Appellant was tried and convicted of armed robbery and assault with a dangerous weapon.

The only issue of substance in this appeal is appellant's claim that the notes taken by Officer Brown during his interrogation of Calan should have been produced under the Jencks Act, 18 U.S. C. § 3500 (1970), and under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The initial description of an assailant by the victim or other eye witness is crucial evidence, and the notes taken of that description should be kept and produced.¹ The formal written police report of the crime does, of course, contain a description of the offender, but that report is often prepared after a suspect is arrested and the danger that the description in the formal report may be subconsciously influenced by the viewing of the suspect by the author of the report is very great. Thus, unless the trial judge is able to see the original notes, it may be difficult, if not impossible, to determine whether or not they should be made available to the defendant under Brady or the Jencks Act.

Here, however, the failure to produce the original notes was harmless beyond a reasonable doubt.² Appellant was arrested on the basis of the police radio "lookout" broadcast immediately after the offense and he was picked up within minutes of the offense with the stolen money. We will not countenance avoidance of our rule that original notes be preserved unless the harmlessness is as self-evident as it is in this case. Otherwise, the prophylactic purpose of our rule is frustrated.³

Affirmed.

LEVENTHAL, Circuit Judge, concurring:

I concur in the affirmance of appellant's conviction. However, I think it appropriate to add my thoughts concerning a police officer's obligation to keep his rough notes of what he hears on the street from eyewitnesses.

A.

Appellant protests the trial judge's denial of the defense motion to strike the testimony of Mr. Calan, the victim who identified him, on the ground that the Jencks Act, 18 U.S.C. § 3500(e) (2), required production of the notes taken by Officer Brown. The majority holds, correctly, that any error committed in denying the motion was harmless. Officer Brown, who subsequently left the D. C. police force, was unavailable at trial. The prosecutor was apparently not aware of the existence of any notes until Mr. Calan testified at trial that he recalled seeing Officer Brown writing as he spoke.

Theoretically the notes might have permitted the defense to undercut Calan's lineup and in-court identification of appellant by showing appellant's actual appearance differed from Calan's initial description to Officer Brown, as indicated by the notes. But immediately after talking to Calan, Officer Brown put a description of appellant out over the police radio that was transcribed and is available. The broadcast description matched appellant in person, and indeed resulted in his arrest within minutes.

B.

I now turn to the majority's declaration that an eyewitness's initial description of the offender is crucial evidence, that the policeman's notes of this description must be available in order to determine whether their production is required under the Jencks Act, 18 U.S.C. § 3500 (1970) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the Court "will not countenance avoidance of its prophylactic rule that original notes be preserved unless the harmlessness is as self-evident as it is in this case."

1. The problem of unavailability of an investigator's "rough notes" is a recurring one. In the past it has been the practice of some law enforcement agencies, notably the FBI, to destroy notes taken during an interview as a matter of administrative routine once a formal report based on the notes has been prepared. That practice has been condemned as "ill-advised" because it impedes impeachment of the report itself, United States v. Missler, 414 F.2d 1293 (4th Cir. 1969), cert. denied, 397 U.S. 913, 90 S.Ct. 912, 25 L.Ed.2d 93 (1970); United States v. Johnson, 337 F.2d 180 (4th Cir. 1964), aff'd 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966).

I join in that condemnation, but do not believe this case is the appropriate vehicle for consideration of an across-the-board rule that it is automatically "error" — though possibly the error may be "harmless" — to receive a witness's testimony if the original notes were destroyed in the course of preparing another report, cf. Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961). See also United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969).

In affirming this conviction, it is our premise that when rough notes are taken in a fast-moving street situation and incorporated into a simultaneous radio lookout, or maybe an officer's report (PD...