United States v. McDougald
| Decision Date | 12 January 1976 |
| Docket Number | No. 9274.,9274. |
| Parties | UNITED STATES, Appellant, v. Ronald N. McDOUGALD, Appellee. |
| Court | D.C. Court of Appeals |
Michael A. Pace, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Jordan A. Luke, Asst. U. S. Attys., were on the brief, for appellant.
Samuel M. Jacobs and Patricia E. Jackson, law student counsel, with whom Susan M. Chalker, Washington, D. C., was on the brief for appellee.
Before REILLY, Chief Judge, KELLY, Associate Judge, and REVERCOMB, Associate Judge, Superior Court.*
The government appeals from a dismissal of an information charging appellee with petit larceny of three packages of bacon from Giant Food, Inc. (D.C.Code 1973, § 22-2202), petit larceny of seven packages of bacon from Safeway Stores, Inc. (D.C.Code 1973, § 22-2202), and receiving stolen property consisting of seven packages of bacon, the property of Safeway Stores, Inc. (D.C.Code 1973, § 22-2205). The trial court held that the decision of witnesses not to discuss the case with defense counsel unless an Assistant United States Attorney was present violated the defendant's right to a fair trial and due process of law. On appeal, the government asserts that the decision of the witnesses not to discuss the case with defense counsel was not occasioned by instructions or advice from either prosecutor or any other government official, and, therefore, was not a denial of due process. The government maintains also that the dismissal of the informations, in any event, was an improper remedy. We reverse.
At the hearing on the motion to dismiss three witnesses testified: Larry Simpson, a Safeway food clerk who was a witness to the two charges in which the Safeway food store was involved; William A. Plummer, a licensed special police officer employed by Giant Food, Inc., who was a necessary witness with respect to each of the alleged offenses charged; and Curtis M. Prince, a licensed special police officer, who was district superintentent of security for Giant Food and Plummer's supervisor, but who was not a witness to any of the crimes charged. Simpson and Plummer were questioned with regard to the basis for their refusal to disclose their knowledge of the case to defense counsel. Prince was questioned concerning an alleged policy of the security force of Giant Food discouraging special police officers, licensed under D.C.Code 1973, § 4-115 but employed by Giant, from discussing such cases with defense counsel.
The trial court found that the reluctance of Simpson of Safeway to speak to defense counsel did not result from any governmental interference, and no issue is presented for appeal. However, Prince testified that he suggested to the special police officers working under his supervision including Plummer, that they not divulge what they observed in a case unless they were in the presence of the United States Attorney. Plummer's testimony revealed that his decision not to talk to defense counsel in this case was based upon his belief that such a refusal was in compliance with the policy of his supervisor, Prince, and his employer, Giant Food.1
The court found that the communications of Prince to his subordinate security officers had the effect of policy, and held that special police officers who are licensed by the District of Columbia have the same responsibilities to defendant as do Metropolitan Police Officers.2 Thereupon, the court granted appellee's motion and dismissed all charges against him.
The issue presented for review is whether policy defined by a superintendent of security for a private corporation, who is licensed as a special police officer from the District of Columbia, of discouraging other licensed special police under his supervision not to discuss a case with defense counsel unless a United States Attorney is present, violates a defendant's right to a fair trial.
Considerations of due process generally involve or relate to an official governmental act which "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental". United States v. Evans, 141 U.S.App.D.C. 321, 326, 438 F. 2d 162, 167 (1971), quoting from Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934). A relevant inquiry, therefore, is whether Prince's advice to Plummer was "official action". The government in this appeal concedes that the United States Attorney may not advise witnesses not to talk to anyone unless the prosecutor is present. Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185 (1966). In Coppolino v. Helpern, 266 F. Supp. 930 (S.D.N.Y.1967), a trial court in another jurisdiction held that "a state official, acting under color of his authority, cannot obstruct defense counsel from interviewing willing witnesses". However, when there is no interference by the government or its attorneys with defense counsel's opportunity to interview witnesses, the courts have consistently held that it is not error for the witness to refuse to cooperate with defense counsel. See e. g., United States v. Clay, 495 F.2d 700, 709 (7th Cir. 1974); United States v. Matlock, 491 F.2d 504, 506 (6th Cir. 1974); United States v. Mirenda, 443 F.2d 1351, 1355-56 (9th Cir. 1971); United States v. Dryden, 423 F.2d 1175, 1177 (5th Cir. 1970); United States v. Bowens, 318 F.2d 828, 829 (7th Cir. 1963); McCabe v. North Carolina, 314 F.Supp. 917, 921 (M.D.N.C.1970); United States v. King, 368 F.Supp. 130, 131 (M.D. Fla.1973). See also Corbett v. People, 153 Colo. 457, 387 P.2d 409, 420 (1963); Barton v. State, 193 So.2d 618, 625 (Fla.App.1966); Kardy v. Shook, 237 Md. 524, 207 A.2d 83, 92-93 (1965); State v. Watkins, 40 Wis. 2d 398, 162 N.W.2d 48, 50 (1968).3
The controlling principle was stated in U. S. v. White, 454 F.2d 435, 438-39 (7th Cir. 1971):
While it is true that witnesses to a crime are the property of neither the prosecution nor the defense and that both sides have an equal right and should have an equal opportunity to interview them [citing Gregory] it is equally true that reversal on this ground requires a clear showing that the government instructed the witness not to cooperate with the defendant. . . . (Emphasis added.]
The status of the witness Plummer as a special police officer is no more relevant than the status of any witness when a United States Attorney or other government official improperly advises a witness not to discuss the case with defense counsel. The proper focus in Gregory should be the source of the directive, namely, the prosecutor. Likewise, in Coppolino, supra, the source of the advice or policy is the official state medical examiner. Plummer's authority to make an arrest does not place him in a different category than any other witness. As stated in Byrnes v. United States, 327 F.2d 825, 832 (9th Cir. 1964):
It is true that any defendant has the right to attempt to interview any witnesses he desires. It is also true that any witness has the right to refuse to be interviewed, if he so desires (and is not under or subject to legal process). If a witness desires to have legal counsel present — either his own private counsel, or counsel supplied by someone else — (such as his employer) he has the right to dictate the terms and to have a private interview. . . . [Emphasis is original.]
The source of the policy in this case is Prince or his employer, Giant Food. Therefore, the status of Prince or Giant is the proper focal point. We think it is clear that Prince was acting in his capacity as a representative of a private corporation when he conveyed a policy to Plummer not to talk to defense counsel unless the United States Attorney was present. If Prince set the policy, he certainly did so as an employee of Giant. Even though it may be the policy of the law to encourage equal access to witnesses, the law does not require such access where witnesses for private reasons and absent government interference refuse to discuss the case with defense counsel.
As to Prince's role as a source of the policy, this jurisdiction long has recognized the very limited status of a special police officer. The power of arrest of a special policeman is the sole factor which distinguishes the holder of a special police commission from a private citizen. See Singleton v. United States, D.C.App., 225 A.2d 315 (1967). In Klopfer v. D. C., 25 App.D.C. 41, 44 (1905) the court stated that a special police officer is
. . . only a special policeman for a special purpose, and not subject to the performance of the general duties of a policeman, in the ordinary sense of that term. . . .
[A special policeman is] employed for one sole...
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