United States v. Maynard

• Decision Date: 26 March 1973
• Docket Number: 24939.,No. 24938,24938
• Parties: UNITED STATES of America v. Charles MAYNARD, Appellant. UNITED STATES of America v. Kermit N. GILBERT, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

155 US App. DC 223, 476 F.2d 1170 (1973)

UNITED STATES of America v. Charles MAYNARD, Appellant.

UNITED STATES of America v. Kermit N. GILBERT, Appellant.

Nos. 24938, 24939.

United States Court of Appeals, District of Columbia Circuit.

Argued March 10, 1972.

Decided March 26, 1973.

Ruth L. Prokop, Washington, D. C. (appointed by this court), for appellant in No. 24,938.

Preston Brown, Washington, D. C. (appointed by this court), for appellant in No. 24,939.

James A. Adams, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., at the time the brief was filed, John A. Terry and Richard N. Stuckley, Asst. U. S. Attys., were on the brief, for appellee. Harold H. Titus, Jr., U. S. Atty., and John F. Evans, Asst. U. S. Atty., also entered appearances for appellee.

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

BAZELON, Chief Judge:

Charles Maynard and Kermit Gilbert were jointly tried and convicted of the assault and armed robbery of one Paul Gueory.¹ During the course of their trial, evidence was admitted that Maynard's sole defense witness, Mrs. Constance Kemper, had been charged with obstruction of justice for her alleged efforts to persuade Gueory not to identify her brother, the appellant Gilbert. On the grounds that the admission of this evidence was error and worked substantial prejudice to Maynard's defense, we reverse Maynard's conviction.

Gilbert contends that handwritten notes taken during a police interview of Gueory should have been available to his defense under the Jencks Act, 18 U.S.C. § 3500 (1970), and Brady v. Maryland.² These notes were delivered to the United States Attorney's office, but were unavailable at the time of trial. Since the record fails to disclose the reason for their disappearance, or any inquiry into the effect thereof, we remand Gilbert's case for a hearing to develop these facts and to consider the issues raised under the Jencks Act, Brady, and this court's decision in United States v. Bryant.³ In addition, we direct the trial court to consider whether the impeachment of Constance Kemper through reference to her arrest for obstruction of justice was prejudicial error as to Gilbert.

The reasons for our decision follow.

I.

The relevant facts concerning the crimes for which Maynard and Gilbert were charged, as told by the victim Gueory, are as follows:⁴

Around noon on October 18, 1969, as Gueory was returning to his rooming house at 1775 T Street, N.W., he overheard that a group of men on the street was looking for one Earl Robinson who resided at the same address. Gueory recognized the appellant Gilbert, although he did not then know him by name,⁵ as being among the group discussing Robinson.

As soon as Gueory reached his room and opened his window, someone in the street group fired a shot in his direction. Gueory spent the rest of the day in his room with his girlfriend Doris Green and other friends, and admitted shooting heroin at ten or eleven at night. At approximately one in the morning of October 19, Gueory left his room to go to the Manhattan Bar on the corner of Eighteenth and T streets. As he crossed an alley on Eighteenth, Gilbert and another man approached him. Gueory wanted to tell them that he had nothing to do with Earl Robinson, but was hit by Gilbert with a gun and was attacked by three other men all carrying weapons. One of these men robbed him of the cash he was carrying. Gilbert threatened to kill Gueory, while Gueory continued to deny that he had anything to do with Earl Robinson.

The four assailants forced Gueory back to his rooming house and he showed them the room belonging to Robinson. As the attacker whom Gueory later identified as the appellant Maynard kicked open Robinson's door, Gueory attempted to climb the stairs to his own room. He heard Gilbert yell "Where in the hell do you think you're going?" and was immediately struck in the legs by a shotgun blast. He continued to crawl up the stairs and was helped into his room by Doris Green.

To this story, Doris Green added only that she had identified Gilbert sitting in front of the rooming house around midnight on that evening and that she knew her cousin, Earl Robinson, had taken something belonging to Gilbert.⁶ After Gueory was shot, she escaped from the rooming house via a bathroom window and telephoned for an ambulance. Gueory was taken to Freedman's Hospital.

II.

The Government's case against the appellant Maynard rested solely on the identification of Maynard by Gueory and Gueory's testimony concerning a conversation he held with Maynard while still in the hospital.

Gueory testified that he by chance recognized Maynard, whom he did not know before the attack, when Maynard was visiting another patient in Freedmen's Hospital. At the time, Gueory reported this to no one, but several days later Maynard again visited the hospital, this time in the company of a woman who identified herself to Gueory as being Gilbert's sister, Constance Kemper.⁷

According to Gueory's testimony, the sister proceeded to show him a picture of Gilbert and asked him not to identify the picture if the police showed it to him. She told him that if he agreed, he would be well taken care of, that she would bring some "goodies" or "five green apples" which Gueory understood to mean money.

Gueory further testified about a bedside conversation he held with Maynard, which proceeded substantially as follows: Gueory accused Maynard of being one of his assailants, which Maynard denied. Thereupon Gueory said to Maynard "You had a .45, didn't you?" to which Maynard replied no, he had a .38. Gueory stated that he could have Maynard arrested right then, and Maynard replied, "Yeah, I know you can." Gueory then told Maynard that he had no animosity and did not want to press any charges.

After his release from the hospital, Gueory made a full statement concerning this visit to Detective Dean Caldwell, who had been questioning him since the shooting. Maynard was arrested on November 21, 1969.

At trial, Maynard did not take the stand to testify in his own behalf. His primary defense witness was Gilbert's sister, Mrs. Kemper, who contradicted Gueory's version of the events at the hospital bedside.⁸ Mrs. Kemper stated that Gilbert's trial counsel had asked her to take a picture of Gilbert to the hospital to see if Gueory could identify him as one of the assailants. Maynard accompanied her from the lawyer's office. Mrs. Kemper stated that Maynard and Gueory did not converse at all, and that as she spoke with Gueory, Maynard walked away to visit another patient.

Her version of the substance of her discussion with Gueory also differed from Gueory's. Mrs. Kemper denied that she offered Gueory a bribe. She said Gueory recognized the picture of Gilbert but would not respond when asked if Gilbert shot him. She did get him to agree to sign a statement that Gilbert had not shot him. When asked on the stand what had resulted from this hospital visit, Mrs. Kemper responded:⁹

"I was charged with obstruction of justice. And I would never do anything to jeopardize myself, my family, or my job."

The Government attempted to impeach Mrs. Kemper with her grand jury testimony to the effect that, contrary to her testimony at trial, Gueory had specifically denied that Gilbert had shot him.

III.

Appellant Maynard's principle contention on appeal arises out of the trial judge's ruling to admit evidence that Mrs. Kemper had been arrested and charged, but not convicted, for obstruction of justice. The Government specifically requested such a ruling, and indicated that it would ask Mrs. Kemper a direct question to this effect during her cross-examination.¹⁰

The theory under which the Government sought the admission of such evidence was that it indicated her bias, or motive for testifying in an exculpatory manner. Counsel for Maynard strenuously objected on the ground that the prejudice resulting from the admission of the charge would far outweigh its probative thrust.¹¹ The trial court ruled that the evidence would be admitted on the Government's theory,¹² at which point Maynard's defense counsel made the tactical decision to raise the issue of the arrest during his direct examination of Mrs. Kemper. He therefore elicited the testimony quoted supra. Maynard now contends that the admission of this statement was reversible error.

As a general rule it is improper to impeach a witness by showing an outstanding indictment without a final conviction.¹³ The reasons behind this rule are that the mere fact of arrest or indictment is still consistent with innocence; an indictment involves repetition of someone else's assertion of the witness' guilt; and it raises a confusing, collateral issue to the case at trial.

In certain situations, however, external facts from which may be inferred a specific bias, or motive to testify in a particular way, are admissible to impeach a witness — e. g., facts which show a familial, employment, or litigious relationship.¹⁴ Since the range of facts from which bias may be inferred is vast,¹⁵ hard and fast rules permitting or excluding specific types of impeachment evidence might be unwise. Thus it may be argued in some cases that the pendency of an indictment against a witness produces a discernible motivation to falsify testimony such as: ill feeling for the person who procured the indictment; interest in currying a favorable disposition from the prosecution;¹⁶ or, as in this case, the self-serving need to exculpate oneself concerning the events charged as a crime.

The Government argues that the trial court's decision to admit the arrest evidence to impeach Mrs. Kemper was not error, since the scope of cross-examination to elicit bias must be broad and is within the discretion of the trial judge. Further, the use of an indictment to show this particular type of bias has been approved in other Circuits.¹⁷

As there appears to be no direct precedent in this Circuit,¹⁸ however, we are...