Washington v. United States, 83-688.

• Decision Date: 30 September 1985
• Docket Number: No. 83-688.,83-688.
• Citation: 499 A.2d 95
• Parties: Timothy WASHINGTON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

499 A.2d 95

Timothy WASHINGTON, Appellant, v. UNITED STATES, Appellee.

No. 83-688.

District of Columbia Court of Appeals.

Argued May 14, 1985.

Decided September 30, 1985.

COPYRIGHT MATERIAL OMITTED

Mark Rochon, Public Defender Service, with whom James Klein and Mark S. Carlin, Public Defender Service, Washington, D.C., were on the brief, for appellant.

Lynn Lincoln Sarko, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Thomas J. Tourish, Jr., and Charles Leeper, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before PRYOR, Chief Judge, and NE-BEKER and TERRY, Associate Judges.

PRYOR, Chief Judge:

Following a three-day jury trial, appellant Timothy Washington was convicted of armed robbery (D.C.Code §§ 22-2901, -3202 (1981)); assault with intent to kill while armed (id. §§ 22-501, -3202); and carrying a dangerous weapon (id. § 223204). On appeal, Washington contends that the trial court erred in (1) limiting appellant's counsel's time to review certain Jencks material;¹ (2) limiting appellant's cross-examination of the complaining witness; and (3) refusing to allow appellant to call the complainant's former boyfriend as a witness for impeachment purposes. We affirm.

I

At trial, the government's evidence showed that on the evening of September 25,1982, the complainant drove to the Potomac Gardens apartment complex in the District of Columbia to look for her former boyfriend, Richard Alexander, and to buy some marijuana.

After she was unable to locate Mr. Alexander, the complainant encountered Washington in the apartment complex parking lot. The complainant had never met Washington prior to that evening. Appellant showed the complainant where marijuana could be purchased, and paid for the marijuana himself because the complainant had left her money in her car.

The complainant and appellant spent approximately one hour and a half together in the Potomac Gardens vicinity, talking and getting acquainted. They discussed the possibility of starting a relationship. After smoking some marijuana, they returned the rest to the dealer because it was of poor quality.

The complainant testified that at about 2:00 a.m., she began to get bored, and became aware that it was very late and thus, told appellant that she was leaving to go home. Appellant gave the complainant his name and phone number, and she wrote the information on a notebook pad she kept in her purse.

Appellant then asked the complainant if she would drop him off at Barry Farms, which was on her way home. The complainant testified that she agreed to drive appellant to Barry Farms because he seemed to be a "nice man," and did not appear to have a car or any other way to get home.

When they arrived at Barry Farms, appellant told the complainant to wait, left his jacket in the car, and went briefly inside one of the apartment buildings. When he returned to the car, he told the complainant to take him back to Potomac Gardens. The complainant testified that she was confused and annoyed because she thought appellant lived at Barry Farms. She testified further that she argued with appellant throughout the return trip to Potomac Gardens, and that he became "very cold and distant" and uncommunicative.

It was nearly 3:00 a.m. when they arrived back at Potomac Gardens. The complainant stopped the car in the parking lot in order to let Washington out. At that point, Washington reached over and turned the car's ignition key, shutting off the engine. According to the victim's testimony, appellant suddenly punched her in the face and told her "not to look at him." After punching her several more times, he ordered her to move over so he could drive. The victim grabbed her purse, jumped out of the car, and began to run away and scream for help. Moments later, appellant caught up with her and began to stab her with a knife. Appellant stabbed the victim repeatedly in her breast, abdomen, and vagina. When the victim finally fell down, appellant stabbed her again at the base of her spine and in her thigh. He then picked up her purse, which contained $50 and the notebook with appellant's name and phone number and ran away.

When the police arrived on the scene, the victim gave Metropolitan Police Department Officer Halgren a description of her assailant — "dark skin, scar on his eye, about 5'9" " and told them his name was Timothy Washington. The victim was taken to D.C. General Hospital and while she was in the emergency room she told another police officer that her attacker's name was Timothy Washington. Two days after her attack, a police officer went to D.C. General Hospital and showed the victim photographs of potential suspects. The victim identified appellant's photograph as that of her assailant. After her release from the hospital, the victim also identified appellant in a police lineup.

Three residents of the Potomac Gardens apartment complex testified for the government at trial.

Jewel Cade and her brother, Nathaniel Cade, who lived in a third-story apartment overlooking the scene of the stabbing, testified that at approximately 3:00 a.m., they heard someone screaming. Jewel Cade opened the window and both of them observed a man stabbing a girl with a knife. Both witnesses testified that the area where the stabbing occurred was well-lit. Nathaniel Cade testified that he was able to briefly observe the left side of the attacker's face. Similarly, Jewel Cade testified that she got a "good look" at the man's face. The Cades called the police and then rushed to assist the victim. When the police arrived, Nathaniel Cade gave them a description of the assailant which matched the victim's description.²

On the evening following the stabbing, appellant was seen near the apartment complex by another Potomac Gardens resident, Angela Reddick. Reddick testified that earlier that day she had heard appellant bragging about stabbing a woman and nearly killing her. Upon seeing appellant again, Reddick told her mother and their neighbor, Jewel Cade. Ms. Cade immediately telephoned the police.

When the police arrived, Jewel Cade identified appellant as the man she had seen the previous evening stabbing the complainant. The police officers approached appellant and attempted to question him but he refused to give the officers his name and attempted to flee. The police apprehended appellant and recovered a knife from his jacket pocket.

Appellant relied on an alibi defense at trial. Appellant's mother testified that appellant was with his girlfriend on September 25, 1982, and returned home at 2:00 a.m. Appellant's friend, James Cox, testified that he and appellant were together, smoking marijuana, immediately before appellant was arrested. Cox implied that appellant ran from the police when he was confronted because he was in possession of marijuana at the time. Appellant did not testify at trial.

During trial, and immediately prior to the complainant's direct testimony, the prosecutor turned over Jencks material concerning the complainant to defense counsel. The Jencks material consisted of ten pages of the complainant's grand jury testimony and a two-page handwritten statement by the complainant. At the conclusion of the complainant's direct examination, defense counsel requested a recess in which to review the material. Over defense counsel's objection that the recess was inadequate, the trial court granted a five-minute break. The trial resumed after five minutes with defense counsel's crossexamination of the complainant.

II

A.

Appellant's first contention is that his rights under the Jencks Act were violated. Specifically, appellant complains that the trial court abused its discretion in granting only a five-minute continuance for the purpose of letting defense counsel review the complainant's Jencks material. We disagree.

Superior Ct.Crim.R. 26.2, which implements the Jencks Act, 18 U.S.C. § 3500(c) (1982), in the District of Columbia, provides in subsection (d):

Recess for examination of statement. Upon delivery of the statement to the moving party, the Court, upon application of that party, may recess proceedings. . . .

Thus, under this rule, the decision of whether and to what extent a continuance should be granted, for the purpose of reviewing Jencks Act material, rests in the discretion of the trial court. See United States v. Augenblick, 393 U.S. 348, 355, 89 S.Ct. 528, 533, 21 L.Ed.2d 537 (1969) (entrusting overall administration of Jencks Act to the trial court's good sense and experience); Jones v. United States, 343 A.2d 346, 350 (D.C. 1975); United States v. Perry, 153 U.S.App.D.C. 89, 95, 471 F.2d 1057, 1063 (1972).

Upon reviewing the proceedings in this case, we do not find that the trial court abused its discretion in granting only a five-minute continuance following the complainant's direct testimony.

Before ruling on defense counsel's request for a continuance, the trial judge first read the Jencks material himself to determine its volume and complexity. After considering the nature and content of the material, the trial judge concluded that the twelve pages "substantially track[ed]" the witness' direct testimony and could be adequately examined in a five-minute recess.

Appellant contends rightfully that the Jencks Act contemplates not only the furnishing of a witness' statement, but also a reasonable opportunity for defense counsel to examine and utilize that witness' Jencks material. Under the circumstances of this case, however, we believe appellant was given such a "reasonable opportunity."

Nor do we find United States v. Hinton, 203 U.S.App.D.C. 187, 631 F.2d 769 (1980), the principal case upon which appellant relies in support of his argument, persuasive authority to the contrary. In Hinton, the United States Court of Appeals for the District of Columbia Circuit held that a defendant was prejudiced when his counsel failed to request a recess during a...