United States v. Person, 72-1422.

• Decision Date: 26 March 1973
• Docket Number: No. 72-1422.,72-1422.
• Citation: 155 US App. DC 455,478 F.2d 659
• Parties: UNITED STATES of America v. Clifton L. PERSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

155 US App. DC 455, 478 F.2d 659 (1973)

UNITED STATES of America v. Clifton L. PERSON, Appellant.

No. 72-1422.

United States Court of Appeals, District of Columbia Circuit.

March 26, 1973.

David I. Granger, Washington, D. C. (appointed by this Court), was on the brief for appellant.

Harold H. Titus, Jr., U. S. Atty., John A. Terry, William H. Collins, Jr., and James W. Diehm, Asst. U. S. Attys., were on the brief for appellee.

Before LEVENTHAL and ROBB, Circuit Judges, and WILLIAM JAMESON,^* United States Senior District Judge for the District of Montana.

PER CURIAM:

Appellant, Clifton L. Person was convicted on a six count indictment, including felony-murder, 22 D.C. § 2401, attempted robbery, 22 D.C. § 2902, and assault with a dangerous weapon, 22 D.C. § 502, involving the robbery of Carolyn Triplett and Jeffrey Crandell, and the shooting of Crandell when he came to the defense of Miss Triplett. Appellant presented no witnesses or other evidence, but raises two issues on appeal: (1) prejudice arising from the loss of grand jury minutes by the court reporter, and (2) the admission of pre-trial and incourt identification by Miss Triplett. We affirm.

It was established at a pre-trial hearing that the court reporter labelled her notes and filed them in her office after recording the grand jury proceedings. The only witness before the grand jury was Detective Fickling of the homicide squad. In his pre-trial testimony he summarized the statements of the other witnesses and the results of his investigation. Before giving this testimony, he read the statements of the witnesses whom he had not personally interviewed, and he based some of his testimony on a case summary he had prepared. He did not, however, read anything to the grand jury.

The court reporter made every effort to locate the notes, to no avail. Because of this development, the prosecutor voluntarily proffered that Detective Fickling would not be called to testify at trial. He also gave appellant all possible discovery, including the names of witnesses, statements of all witnesses, FBI material, and all physical and tangible evidence. He also turned over the resume prepared by Detective Fickling, from which the detective testified to the grand jury.

It was not error for the court to proceed in the circumstances. Given the full disclosure by the prosecution, the fact that Detective Fickling was not called to testify, the orderly procedures established for preserving minutes, and the good faith efforts made to retrieve them when lost, there is no showing of bad faith, or the kind of negligence, going beyond the mishap all of us may encounter, that warrants a sanction as extreme as dismissal of the indictment, or the exclusion of the witnesses whose statements were summarized to the grand jury. See United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642, aff'd after remand, 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971). There is no realistic basis, beyond extrapolated speculation, for supposing that the availability of the lost minutes would have undercut the prosecution's case.

Miss Triplett was the only eyewitness to the robbery and shooting. There were three robbers, and appellant, whom Miss Triplett testified fired the shot which killed her escort, was identified by her for the first time at a line-up. At trial she testified that she had gotten a clear look at appellant during the robbery for...