United States v. Holmes

• Decision Date: 14 August 1975
• Docket Number: No. 8172.,8172.
• Citation: 343 A.2d 272
• Parties: UNITED STATES, Appellant, v. Willie J. HOLMES, Appellee.
• Court: D.C. Court of Appeals

Page 272

343 A.2d 272

UNITED STATES, Appellant, v. Willie J. HOLMES, Appellee.

No. 8172.

District of Columbia Court of Appeals.

Argued October 22, 1974.

Decided August 14, 1975.

Justin D. Simon, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and C. Madison Brewer, Asst. U. S. Attys. were on the brief, for appellant.

Linda Huber, Washington, D. C., for appellee.

Before KELLY, KERN and GALLAGHER, Associate Judges.

KELLY, Associate Judge:

The government appeals here from a pretrial order granting the accused in a first degree murder case discovery of the names and addresses of persons the government intends to call as witnesses at tria1.¹ Its position before the trial court, and here, is that a trial judge is without authority to order pretrial disclosure of the identity of any government witness in any criminal case. We disagree and affirm.

Appellee Willie J. Holmes was charged with first degree murder, D.C.Code 1973, § 22-2401, for a death that occurred in this city on the afternoon of March 2, 1973, at the corner of 9th Street and Pennsylvania Avenue, S.E. There were at least three eyewitnesses to the homicide and the government proffered pretrial that it proposed to prove premeditation and deliberation through the testimony of these witnesses that the accused followed the victim down the street, stabbing him repeatedly.

Defense counsel, the second appointed to represent appellee, did not know the identity of these witnesses² nor did he have any means of finding them since the crime occurred on the street and the witnesses were passersby. Counsel felt he could not rely on the recollections of the accused, who had been drinking heavily on the day of the killing,³ and appellee's former attorney allegedly had undertaken no defense investigation during the ten months following the offense. He asserted that he was unable to prepare his case or to advise his client whether to plead guilty to the lesser charge of second degree murder without the opportunity to interview the witnesses. Accordingly, counsel moved under Super. Ct.Cr.R. 16 for the production of "the names and addresses of all persons who have knowledge of this case." The government opposed the motion not only by arguing a lack of authority in the court to order production, but also that the defense had already been given extensive pretrial discovery, including a copy of a supposedly inculpatory statement appellee had given the police.

The court granted the motion to produce insofar as it related to witnesses the government planned to call at the trial, finding in its order of January 10, 1974, that the identities of the eyewitnesses to the murder were unknown to the defense and, under the circumstances of the case, "not likely to be discovered even in the course of a diligent, meticulous investigation of the facts"; that psychiatric reports of record supported the conclusion that the defendant was intoxicated at the time of the offense;⁴ that without the names of the witnesses defense counsel would be hampered in preparing the case for trial and advising the accused whether to enter a guilty plea; and that the showing of need by the defense substantially outweighed any government interest in nondisclosure. It ordered the government to furnish the names and addresses of its eyewitnesses on the condition that defense counsel not disclose their identities except to a specified co-counsel. It further ordered that the witness interviews be conducted by counsel and his co-counsel in the presence of any person the witnesses wished to accompany them and at times convenient to the witnesses. The trial court's order was not based on Rule 16, which does not provide for the discovery of names of witnesses, but rather on "the inherent power [of the court] to compel the government to disclose the names and addresses of witnesses."⁵ When the government chose not to comply with the order, the court suppressed the testimony of its witnesses.⁶

The issues presented for review are whether the trial court was empowered to order the production by the prosecution of the names and addresses of its eyewitnesses to the alleged crime and, if so, whether it was justified in doing so here.

I

Discovery in criminal cases, once quite limited, has become commonly available in the last several decades.⁷ Approximately 22 states presently require that the accused be notified prior to trial of the witnesses to be called against him, usually by endorsement on the indictment or information.⁸ The American Bar Association Advisory Committee on Pretrial Proceedings recommends the following standard for the discovery of witness lists:

2.1 Prosecutor's obligations.

(a) . . . the prosecuting attorney shall disclose to defense counsel the following material and information within his possession or control:

(i) the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial, together with their relevant written or recorded statements. . . . [ABA Standards, Discovery and Procedure Before Trial § 2.1 at 52 (Approved Draft, 1970).]⁹

Two strong reasons are given for this recommendation. The first is that it is clearly in the interest of fairness that the defense be able to prepare to cross-examine and test the credibility of the government's witnesses.¹⁰ The second, which the Advisory Committee finds even more compelling, is that a broad discovery policy (including the disclosure of witness lists) is vital to the effective administration of our system of criminal justice.¹¹ Disclosure assures that issues which affect the validity of the proceedings, and which should be disposed of pretrial are brought to the attention of the defense and dealt with in a timely manner. In addition, disclosure of the prosecution's evidence "facilitates the obtaining of guilty pleas" which has "positive values for the criminal process" and is more efficient as well.¹²

At the present time there are no such broad discovery provisions operative in the federal courts, nor in the courts of the District of Columbia.¹³ Discovery of witnesses or witness lists may result from a number of rules and case decisions, however. For example, under Fed.R.Crim.P. 7(f) which provides for the filing of a bill of particulars [and also under Super.Ct. Cr.R. 7(f)],

it is not uncommon for the Government to be required to disclose the names of some potential witnesses . . where this information is necessary or useful in the defendant's preparation for trial. [Citations omitted.] [Will v. United States, 389 U.S. 90, 99, 88 S.Ct. 269, 275, 19 L.Ed.2d 305 (1967).]

The alibi rule, Super.Ct.Cr.R. 16-I, and Supreme Court decisions require the prosecutor to notify the defendant of the witnesses by whom it intends to refute an alibi defense. Smith v. United States, D.C. App., 325 A.2d 180, 183 (1974). A constitutional requirement that the prosecution disclose exculpatory witnesses and evidence to the accused has been articulated by the Supreme Court and subsequent circuit court cases.¹⁴ Moreover, discovery is often engaged in by the prosecution on an informal basis.¹⁵

Formerly, discovery was mandatory in capital cases by virtue of 18 U.S.C. § 3432.¹⁶ The decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), held unconstitutional statutes which permit capital punishment imposed at the discretion of the jury as constituting cruel and unusual punishment,¹⁷ however, which in effect neutralizes the statute.¹⁸

II

In the face of the mandate of 18 U.S.C. § 3432 that witness lists must be divulged in capital cases, a body of federal case law has formulated a rule that absent a constitutional command or a statute (such as 18 U.S.C. § 3432) the government is not required to disclose its witnesses.

[I]n the absence of a statutory or constitutional requirement the government is not required to endorse the names of its witnesses on the information or indictment, nor is there a requirement that the government disclose its witnesses in any other manner, except in the case of a trial for a capital offense. [Citations omitted.] [United States v. Seasholtz, 435 F.2d 4, 7 (10th Cir. 1970).]¹⁹

To say that the government is not required to turn over witness lists in non-capital cases does not mean, however, that it cannot be ordered to do so in an appropriate case. The general rule does not afford the government immunity from the court's mandate.

The question of the power of a trial court, on a motion by the defense to order production of witness lists, was squarely faced in United States v. Richter, 488 F.2d 170 (9th Cir. 1973). The district court had granted a limited motion for discovery of the names and addresses of all government witnesses who had made bets with the defendants or would testify concerning their participation in a gambling ring. The circuit court held that aside from the Fed.R.Crim.P., the district court had the power to enter the challenged Order,²⁰ stating:

It is recognized that wide latitude is reposed in the district court to carry out successfully its mandate to effectuate, as far as possible, the speedy and orderly administration of justice. "A federal court has the responsibility to supervise the administration of criminal justice in order to ensure fundamental fairness." [Citations omitted.] [United States v. Richter, supra, 488 F.2d at 173.]

This excerpt indicates that the court's holding rests on grounds of fundamental fairness and of administrative efficiency and order, with the latter helping to effectuate the former. In our judgment, the government may be required to allow discovery of its witnesses under the aegis of either principle.²¹

Whether discovery of the names and addresses of witnesses is to be granted requires a consideration of opposing interests. Generally, the major interests represented by the government are the protection of the witnesses and the integrity of their testimony.²² To...