Gloria J. Alexander v. United States of America, Margaret M. Watkins v. United States

336 F.2d 910

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 7, 1964
• Docket: 18125_1
• Status: Published

Opinions

PER CURIAM:

Appellants (two women) met the complainant (a man) in a bar and had drinks with him. When he left they followed him, seized him, and took a roll of bills from his pocket. A police officer happened to witness the later stages of the affair and arrested them on the spot. They were indicted for robbery and convicted of assault with intent to commit robbery.

In defense appellants say they had given the complainant a dollar with which to buy whiskey and were seeking to recover their money. They submitted that version to the jury, but as the verdict indicates, that body declined to accept it.

Appellants also present a point under the so-called Jeneks statute.¹ Inquiry was made into the matter at the trial. It was established that the officer had made an original pencil' draft of a report, that the draft had been given to a stenographer at police headquarters who made a typewritten version of it, and that the officer signed it. The typed report was produced at the trial and used to impeach the officer’s testimony as to the events he witnessed. As to the pencil draft the officer said: “ * * * it went in the trash after it was — * * * It. probably went in the trash after the clerk typed it.” All who heard this testimony appear to have taken it at face value as establishing that the notes had been destroyed in the usual course of business.² The defense in particular seized upon the fact of the destruction of the notes, and urged upon the court that that fact alone necessitated the striking of the officer’s testimony. It did not suggest to the court, by motion or otherwise, that a hearing be held to inquire into either the fact or the circumstances of the destruction.

Appellants now say the trial judge should, upon his own initiative, have held a hearing to determine whether the original pencil draft of the policeman’s report had been destroyed. As the Supreme Court pointed out in Campbell v. United States,³ the inquiry conducted by the judge upon such a matter is not an adversary proceeding controlled by rules as to burden of proof or persuasion, but is simply a proceeding necessary to aid the judge to discharge the responsibility laid upon him to enforce the statute. The trial judge in the case at bar, having the officer before him and hearing his testimony, was satisfied there was no cause for a hearing. The record indicates that the defense was similarly satisfied. The only objective of a hearing would have been to determine whether the throwing of the pencil notes into the trash had been in bad faith or not in normal course. No suggestion to that effect was made at the time. We cannot say the trial judge committed reversible error in failing to initiate an inquiry which no one who heard the officer’s testimony thought necessary.

As to the argument that the destruction of the pencil notes after they had been typed and the typed copy signed made the officer’s testimony inadmissible, Killian ⁴ is to the contrary.

Affirmed.

1 . 71 Stat. 595 (1957), 18 U.S.C. § 3500.

2 . In his interrogation of the officer, defense counsel himself referred to the handwritten statement as “The one in the trash.”

3 . 365 U.S. 85, 95, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961).

4 . Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961).