Wiggins v. United States, 11561.

• Decision Date: 24 April 1978
• Docket Number: No. 11561.,11561.
• Citation: 386 A.2d 1171
• Parties: Adrian J. WIGGINS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1171

386 A.2d 1171

Adrian J. WIGGINS, Appellant, v. UNITED STATES, Appellee.

No. 11561.

District of Columbia Court of Appeals.

Argued November 16, 1977.

Decided April 24, 1978.

Mady Gilson, Public Defender Service, Washington, D. C., for appellant. Silas J. Wasserstrom, Public Defender Service, Washington, D. C., also entered an appearance for appellant.

Steven D. Gordon, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Albert H. Turkus, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KERN, YEAGLEY and FERREN, Associate Judges.

YEAGLEY, Associate Judge:

Appellant was convicted by a jury on August 16, 1976, of one count of robbery, in violation of D.C.Code 1973, § 22-2901. On October 15, 1976, the court suspended imposition of sentence and placed appellant on three years' probation under 18 U.S.C. § 5010(a) (1970).

The case grew out of the following fact situation. On March 12, 1976, the complainant was accosted as he was returning to his car after leaving a branch of the National Bank of Washington at 7601 Georgia Avenue, N.W. The assailant attempted to take from the complainant a brown paper bag in which the latter had placed money received at the bank. After a struggle, the assailant grabbed the bag and ran away. Mr. Kenneth Dual observed this altercation. He followed appellant from the scene, saw him exchange clothing and give the paper bag to a woman waiting in a white Cadillac, and alerted police officers, who arrested appellant and returned him immediately to the bank. At the bank, complainant identified appellant, as did Mr. Dual and a teller.

At trial, appellant was again identified by both complainant and Mr. Dual, and by Mary Lumpkin, who lived near the bank and who testified that on the afternoon of March 12, she observed appellant running through an alley and across her backyard, carrying a paper bag.

Appellant's defense was mistaken identity. He also presented four witnesses who testified to his good reputation for peacefulness and veracity.

This appeal presents for resolution the question whether the trial court erred in refusing to grant appellant's requests that it order the government to produce a transcript of the grand jury testimony of three witnesses who allegedly gave testimony favorable to appellant, and who were not called by the government as witnesses at trial.¹ Appellant contends that this refusal violated his due process right to exculpatory material recognized in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10' L.Ed.2d 215 (1963), and that the trial court abused its discretion in denying appellant's request for production of this testimony under then effective Super.Ct.Cr.R. 16(b).²

We turn first to appellant's Brady claim. In Brady, the Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196. In the instant case, three factors fatally undermine appellant's contention that the evidence which he requested was suppressed, as Brady envisions that term.

First, the government disclosed to the defense the identity of witnesses whose grand jury testimony might be favorable.³ Such a procedure was held to satisfy Brady in United States v. Ruggiero, 472 F.2d 599, 603-05 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2772, 37 L.Ed.2d 398 (1973). There, the court said:

Here the appellant was on notice of the essential facts required to enable him to take advantage of such exculpatory testimony . . . . He was also well aware of the process by which they could be compelled to testify at trial. As long as they could be subpoenaed to testify, their grand jury testimony, if offered in their absence, would have been excluded as hearsay. If appellant wanted their testimony, the obvious and logical course was to subpoena them and put them on the witness stand. [Id. at 604-05.]

See also United States v. Natale, 526 F.2d 1160, 1170-71 (2d Cir. 1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976).

A second factor cutting against our finding suppression is that the record contains the prosecutor's unchallenged statement to the trial court that he had read to defense counsel a substantially verbatim account of the grand jury testimony here in issue.

Third, with regard to the grand jury testimony of Mr. Barnes, we note that he appeared as a defense witness at trial, and that his trial testimony mirrored the account of the robbery which he gave to the grand jury.⁴

Under these circumstances, there was simply no suppression of evidence, and we do not have before us the kind of unfairness to which Brady addressed itself. We hold that the trial court did not violate appellant's Brady rights by denying production of the grand jury transcripts.

This holding is not, however, dispositive of appellant's remaining contention that the trial court abused its discretion in denying his timely and repeated requests for production of the grand jury transcripts under Super.Ct.Cr.R. 16(b). Although this rule was amended subsequently, we must, of course, resolve appellant's contention in light of the rule applicable when the requests were made. (See note 2, supra.)

Brady mandates retrospective analysis; in the instant case we have, in hindsight, determined that appellant was not denied a fair trial in a manner which that case proscribes. Review of a contention under then effective Rule 16 is controlled by a different consideration. The rule purported to provide a criminal defendant with an opportunity to develop his case, and to require the trial court, in exercising its discretion, to make a prospective assessment of the potential value of the evidence requested by the defendant. The rule required that the defendant demonstrate the materiality of the requested evidence and that the request be reasonable, insofar as compliance would not unduly burden the government. With respect to the latter of the two requirements, there is no assertion on the record that the government could not have logistically complied with appellant's request.⁵ With respect to the former, we cannot say, again with reference to the record, that the requested evidence was so patently lacking in materiality as to justify the trial court's denial of appellant's requests without an in camera investigation of the contents of the material sought.⁶

We hold that the trial court abused its discretion in not examining this material before ruling on appellant's requests. We do not hold that such inspection is necessary in all circumstances, but we emphasize that trial courts must be solicitous of discovery motions and careful not to deprive a defendant of a critical, statutorily, provided defense tool.

Finally, however, review of the entire record convinces us that the trial court's error in this case was harmless, inasmuch as the judgment was not swayed substantially, if at all, by the error. Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). The grand jury testimony of which appellant was prospectively and erroneously deprived was brought to appellant's attention subsequently and, in any event, would have done nothing to strengthen his defense against the instant charge⁷

Appellant's conviction is

Affirmed.

FERREN, Associate Judge, with whom KERN, Associate Judge, joins, concurring:

In this case we hold that the exculpatory evidence requested by the defense was not "suppressed" within the meaning of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny; appellant received all the information he sought that was covered by the Brady principle. Thus, we do not reach the question whether there was reversible error under Brady for failure to produce "material" evidence.

We do, however, reach the "materiality" question under Super.Ct.Cr.R. 16(b) (as in effect at the time this case was tried), for a document commonly subject to discovery was unquestionably withheld.¹ That is to say, given the fact that appellant did not receive the requested grand jury transcript, we must consider whether the trial court committed reversible error for failure to order the government to produce "material" evidence within the meaning of Rule 16(b). The Rule 16 question, therefore, is the more complex one here.

Although we resolved the Brady issue short of selecting and applying the appropriate appellate review standard for materiality, we gained perspective for the Rule 16 analysis by comparing it with the proper treatment of (hypothetically) suppressed "Brady" evidence. Unless the court makes such a comparison when it considers a request for information under both Brady and Rule 16, the court may inadvertently — and inappropriately — apply a Brady gloss to the Rule 16 question (as, we shall see, the trial court did here).² Accordingly, I propose to sketch out a few observations about the appellate review standards under Brady and Criminal Rule 16, respectively, in order to assure that the Rule 16 issue is given its due, independent of the Brady principle.

I.

In this case, as in Brady itself, there was a pretrial request for specific evidence. Had there been a "suppression," within the meaning of Brady, the question of affirmance or reversal would have turned on whether the suppression was "material" to the outcome.

A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome. [United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976).]³

Thus, the test is essentially a one-step inquiry, with the burden of proof on the appellant; there is no "harmless"-"reversible" error dichotomy under Brady.

Under former Super.Ct.Cr.R. 16(b),...