Gibson v. United States

536 A.2d 78, 1987 D.C. App. LEXIS 521, 1987 WL 33845
District of Columbia Court of Appeals·Decided December 9, 1987·No. 84-1379·Published·Cited by 25 cases

Opinions

NEBEKER, Associate Judge,

Retired:

Following a jury trial, appellant Roy Gibson was convicted of murder in the first degree while armed (felony murder), D.C. Code §§ 22-2401 (1981), -3202 (1987 Supp.); two counts of armed robbery, id. §§ 22-2901 (1981), -3202 (1987 Supp.); and assault with intent to commit robbery while armed, id. §§ 22-501 (1981), -3202 (1987 Supp.). On appeal,1 Gibson contends the trial court abused its discretion in excluding certain expert testimony which was sought for the purpose of showing bias on the part of various government witnesses. Gibson also claims the exclusion violated his sixth amendment rights. In his second issue, Gibson argues an abuse of discretion by the trial court for its failure to strike the testimony of two government witnesses [80] whose tape recorded telephone calls to the 911 emergency number were erased and thereby made unavailable for the purposes of the Jencks Act, 18 U.S.C. § 3500 (1982). The third issue on appeal involves the trial court’s in camera review of a radio transmission between police dispatchers and the field units and the court’s determination that the “radio run” contained no Jencks material. Gibson claims the trial court erred in its finding and he asks this court to make an independent review of the radio transmission. We affirm.

The government’s evidence at trial established that on the afternoon of February 17, 1983, several armed men, including Nathaniel Martin, entered a barber shop at 1812 7th Street, Northwest, Washington, D.C. Appellant Gibson and shop owner Spurgeon Cooper, as well as a number of other persons, were already present in the shop when the armed men entered. Martin, who was wielding a gun, announced the fact of a “stickup” and ordered everyone to the rear of the shop. At the same time, Gibson displayed a knife and proceeded to take $220 from Jessup Melvin — one of the persons in the shop. As Martin directed the other people to hand over their money, shop owner Cooper stood up and moved away from where he had been ordered to remain seated. Martin shot Cooper after another of the robbers yelled for him to do so. One of the government’s witnesses, Jessup Melvin, identified Gibson as the robber who exhorted Martin to shoot Cooper. After Martin fired the shot, all of the assailants fled the store.

Two of the persons who had been in the shop during the robbery called the 911 emergency number immediately after the incident. Jessup Melvin was the first to telephone the emergency number; he spoke to a police official for three to four minutes regarding the robbery and shooting. Shortly after Melvin’s call, Sampson Cannon also telephoned the 911 number. He spoke to a dispatcher and related what had happened in the barber shop. After receiving the 911 calls, a dispatcher communicated, in what is known as a “radio run,” to police units in the field providing information based upon that received in the telephone calls.

Gibson was identified by three of the individuals who were in Cooper’s shop during the robbery and shooting. Gail Johnson identified Gibson from a photograph array that was shown to her by the police during their investigation on the evening of the crime. Johnson also testified that Gibson spoke to her two days after the robbery regarding his participation in the incident. Jessup Melvin failed to identify Gibson from the police photograph array; however, at a lineup that Melvin attended on May 4, 1983, he did point out Gibson as one of the robbers. On cross-examination, Melvin denied that an illegal numbers operation was conducted from Cooper’s shop. Sampson Cannon did not view the photograph array, but at the May 4th lineup he made an identification of Gibson after hearing each of the individuals in the lineup speak a few words. Cannon was cross-examined about his 1979 arrest for possession of illegal numbers slips. He admitted to playing the numbers but denied that Cooper’s shop was the scene of illegal gambling.

Gibson’s defense was based on the premise that Cooper’s barber shop was a front for the operation of a numbers game, and on the fact that Gibson informed the police of the operation when he was interviewed by them during the course of their investigation a few weeks after the robbery. Gibson’s counsel, in an opening statement to the jury, theorized that the persons who were in the shop when the robbers entered were involved in the illegal numbers game. Furthermore, defense counsel argued that those people identified Gibson as one of the robbers in order to discredit the information he gave to police about the numbers operation, thereby reducing the chance that they would be charged with illegal gambling. Although Gibson was able to outline his defense in his opening statement and to cross-examine the government witnesses, the trial court did not allow Gibson to present expert testimony from a police detective who had been involved in a 1979 investigation of the barber shop for violations of the gambling laws.

[81] I

Gibson contends that the trial court abused its discretion in excluding the expert testimony that was offered to show that Cooper’s barber shop had in the past been the scene of a numbers operation. The exclusion of the testimony was, Gibson claims, an erroneous evidentiary ruling as well as a violation of his sixth amendment right to present a defense and to confront the witnesses against him. We disagree.

The expert testimony that Gibson sought to have admitted was that of Detective Robert Rafferty. Drawing on his extensive experience with the Metropolitan Police Department, including over three years on the gambling and liquor squad, Rafferty, as a qualified expert in numbers gambling, would have testified as to how an illegal numbers operation is conducted. In addition, Rafferty would have given his opinion that decedent Cooper’s barber shop had in the past been the site of a numbers operation.

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Gibson v. United States, 536 A.2d 78, 1987 D.C. App. LEXIS 521, 1987 WL 33845 (D.C. 1987).

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Gibson v. United States
536 A.2d 78 (District of Columbia Court of Appeals, 1987)