United States v. Dockery, 6249.

• Citation: 294 A.2d 158
• Decision Date: 23 June 1972
• Docket Number: No. 6249.,No. 6250.,6249.,6250.
• Parties: UNITED STATES, Appellant, v. Mary Elizabeth DOCKERY, Appellee. UNITED STATES, Appellant, v. Myra Annetha WITHERSPOON, Appellee.
• Court: Court of Appeals of Columbia District

Page 158

294 A.2d 158

UNITED STATES, Appellant, v. Mary Elizabeth DOCKERY, Appellee.

UNITED STATES, Appellant, v. Myra Annetha WITHERSPOON, Appellee.

No. 6249.

No. 6250.

District of Columbia Court of Appeals.

Argued March 15, 1972.

Decided June 23, 1972.

Rehearing Denied August 30, 1972.

Ann S. DuRoss, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Lawrence T. Bennett, Asst. U. S. Attys were on the brief, for appellant in both cases.

Robert M. Weinberg, Washington, D. C., with whom Robert E. Clem, Washington D. C., was on the brief, for appellee Myra A. Witherspoon.

Peter Weisman, Washington, D. C., with whom Stephen S. Millstein, Washington, D. C., was on the brief, for appellee Mary E. Dockery.

Before KERN, GALLAGHER, and REILLY, Associate Judges.

REILLY, Associate Judge.

Under a Congressional statute popularly known as the Jencks Act,¹ a defendant in a criminal prosecution may, after a witness called by the Government has testified on direct examination "in the trial of the case", obtain from the Government any statement or report such witness has previously made, provided the court after ordering the Government to produce such material, rules that the contents relate to the subject matter of the testimony of that witness. In the two cases consolidated here on appeal, the court below ruled that in hearings on pretrial motions to suppress evidence a defendant has the right to call for the production of such material when a prosecution witness has completed his direct testimony.

When these rulings were made, the Government refused to produce the requested documents for the inspection of defense counsel. The court then ordered struck from the record of each case, the testimony of the witnesses whose prior statements the Government decided to withhold,² and granted the motion to suppress. The Government thereupon noted an appeal and moved in this court for summary reversal of these orders, contending that the first subsection of the Jencks Act expressly makes pre-witness stand statements of persons testifying for the Government immune from discovery or inspection by the defendant "until said witness has testified . . . in the trial of the case".³

Because of the importance of the issue, we decided⁴ to treat the Government's motion as its brief in both cases and accordingly called for briefs of appellees and oral argument by all parties. Although the challenged orders were made on successive days after separate hearings involving different defendants accused of wholly unrelated offenses, the sole question before us in the present posture of the cases is whether the term "trial of the case" as used in the Jencks Act should be read so narrowly that a defendant in a suppression hearing⁵ is not entitled to the same rights in cross-examination conferred upon him by the Act in a formal criminal trial.

The setting in which this issue arose is very much alike in each of the cases before us. Both stemmed from warrantless arrests incident to the stopping of automobiles by police officers, and the subsequent discovery of contraband articles in such vehicles. In each instance counsel for the defendant filed a motion under Rule 41(g) of the Superior Court Criminal Rules alleging that the item on which the particular informations was based had been obtained by the police in circumstances amounting to an unlawful search and seizure. In the Witherspoon case, No. 6250, the object of the suppression motion was a pistol; in Dockery, No. 6249, a quantity of heroin.⁶

At each hearing, the Government produced the officer who had made the arrest. At the first hearing — Witherspoon — the witness testified that he and another officer were in a scout car, which was overtaken and passed by another car bearing tags reportedly identical to those on a vehicle involved in an armed robbery. When such vehicle was flagged down, the officer stated that his fellow officer noticed a pistol lying in the rear of the car at appellee Witherspoon's feet and picked it up. Thereupon they arrested all the occupants of the car. After the prosecutor had completed his direct examination of this witness, defendant's counsel asked for the written arrest report of the officer.⁷

The Government objected. After hearing argument, the court overruled the objection. When the Government persisted in its position, the court struck the officer's testimony and granted the motion to suppress.

In the hearing on No. 6249, the arresting officer testified that an informant had told police that appellee Dockery was carrying drugs in a leather pouch about the size of a cigarette package, and pointed her out as she entered the rear door of an automobile. Pursuant to a radio call, the car in which Dockery was a passenger was stopped by other officers. When the witness appeared on the scene and the driver was being questioned, the former observed appellee place a "dark object" in a cardboard box next to her on the seat. She then was asked to produce her purse and to step out of the car. When she complied the officer reached inside, picked up the box and, according to his testimony, uncovered a leather pouch inside of which were nine tinfoil packages containing white powder. Before cross-examining the witness, Dockery's counsel asked for the witness' P.D. 163. The same objection was advanced, and the same ruling made, culminating in an order to suppress.

This court has repeatedly held that fourth amendment rights are not violated when a policeman who has stopped an automobile because of a report of a law violation and subsequently has noticed a contraband object in plain view inside the car, then seizes and examines such object without a warrant even prior to making an arrest, e. g., Davis v. United States, D.C. App., 284 A.2d 459 (1971), citing Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). Thus it is clear that the testimony of the arresting officers in each of these cases, had such testimony stood unchallenged, would have compelled the court conducting the hearings to have overruled the motions to suppress. The most effective method of discrediting such testimony, of course, would be to discover and demonstrate that the police witness had previously described the incident in terms at variance with his testimony at the hearing. Plainly, defense counsel's ability to resort to this technique on cross-examination would be seriously impaired if the Jencks Act denied a defendant access at suppression hearings to official reports which would have been available to him if the Government called the same witness at the trial.

Despite this seeming unfairness, however, the Government contends that its construction of the Act would not be prejudicial to the defense in the long run. It points out that if prehearing statements of an adverse witness on the suppression motion are withheld, the defendant has an opportunity to inspect such statements at trial when the Government in offering the challenged item of evidence calls such witness to identify it. Should it then develop that such statements do in fact provide material for impeaching the witness, defense counsel could ask and expect the trial court to reconsider the previous adverse ruling on the motion to suppress.

We have some difficulty with this argument. For one thing, it seems to assume that the defense would be permitted in cross-examination to bring up matters not covered in direct examination at the trial, but in earlier testimony of the witness. Moreover it provides no adequate recourse if the Government at trial relies on witnesses other than those produced at the motions hearing. More importantly, it would seem to detract from the significance of pretrial rulings on defendant's chief objection to the evidence, for there could be no conclusive showdown on the suppression issue until the trial itself — thus defeating the very purpose of the rules requiring such an issue to be raised in advance whenever possible. Hence the position urged by the Government raises the spectre of repetitious evidence over the same issue in consecutive proceedings.

We have examined the legislative history of the Jencks Act to ascertain whether Congress intended any such incongruous result when it enacted this measure. Neither the committee reports nor the statements of the managers of the bill when it was debated disclose that Congress ever adverted to its possible impact upon pretrial suppression hearings. It is apparent that the purpose of the legislation was to incorporate into statutory criminal procedure a limitation on the decision of the Supreme Court in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), which held that in a prosecution for perjury, the defendant had a right to inspect prior statements given by Government witnesses to agents of the Department of Justice. The opinion was not precise as to the scope and timing of a defendant's right to call for the production of such documents. As a result, a number of lower Federal courts started to grant pretrial subpoenas or motions for discovery which permitted defendants broad access to materials in Government files in advance of any testimony by prosecution witnesses. The new Act was drawn to prevent such "fishing expeditions" and yet to preserve for all defendants the essence of the actual right which the court had said should have been accorded the defense in the Jencks case.

So far as the issue now before us is concerned, one portion of the report of the Senate Committee on the Judiciary is illuminating —

One of the causes of misinterpretations is the fact that there appears to be great uncertainty as to when the statements of witnesses are to be produced and whether or not the statements should first be examined by the trial judge. The committee is of the opinion, and the bill so provides, that statements of witnesses should not be subject to production until the Government...