Moore v. United States

353 A.2d 16, 1976 D.C. App. LEXIS 464

• Court: District of Columbia Court of Appeals
• Decided: February 3, 1976
• Docket: 8069, 8080
• Status: Published

Opinions

KELLY, Associate Judge:

Appellant Moore was convicted by a jury of armed robbery, D.C.Code 1973, §§ 22-2901, -3202, and was sentenced to three to ten years imprisonment. Appellant Johnson was convicted of robbery, D.C. Code 1973, § 22-2901, for which he was imprisoned for eighteen months to ten years. The victim of the robbery, James E. Gibbs, identified appellants seventeen days after the event in a chance street encounter near the courthouse. This identification was the only evidence linking appellants with the offense. No proceeds of the robbery were recovered, ho usable fingerprints were taken from Gibbs’ car which appellant Johnson had attempted to start during the robbery, and no other evidence of appellants’ participation in the crime was presented. The issue on appeal is whether the trial judge erred in refusing' to impose the sanctions of the Jencks Act, 18 U.S.C. § 3500 (1970), by striking Gibbs’ testimony when the government failed, upon request, to produce a police officer’s notes which were taken in an interview immediately following the robbery and contained the witness’ initial description of the robbers.¹

Complainant Gibbs testified at trial that there were two robbers; that the gunman was “on the same plane” with him, which was about five feet nine inches in height, and that his companion only came up to the gunman’s shoulder. Officer James D. Nance, who took the report of the robbery, testified that he had written down Gibbs’ description of the robbers;² that his notes had been misplaced, and that Gibbs had told him, among other things, that both robbers were' five feet five inches tall.³ After Officer Nance completed his direct testimony, defense counsel requested the production of the notes containing the witness’ description of the robbers. The government failed to produce the notes and counsel moved to strike the complainant’s testimony. The court summarily held that the notes were not Jencks material, but when reminded of this-court’s decision in Banks v. United States, D.C. App., 305 A.2d 256 (1973), and of the Police Department Regulations requiring the preservation of descriptive notes taken at the scene, a brief inquiry was made of the officer which developed that the notes could not be found. The court nevertheless denied the motion to strike without indicating whether the ruling was that the notes were not Jencks material or that the government’s inability to produce the witness’ statement due to its loss did not require the imposition of sanctions under the Act. Because the basis of the court’s ruling is uncertain we remand the record for a full hearing on the question.

For the Jencks Act to apply and for the right of discovery to exist under the Act, the records at issue must be “statements” within the meaning of the Act.⁴ And when the statement of a witness is oral, a transcription of the statement must be “substantially verbatim” and “recorded contemporaneously”. The transcription must be a continuous, narrative recording rather than mere selective notations or excerpts from the oral statements.⁵ Documents which substantially incorporate notes or records of oral statements of a witness may satisfy the production requirements of the Act depending on the reliability of the reporting process and the absence of prejudice to the defendant.⁶

The District of Columbia Police Department promulgated General Order Series 601, No. 2, effective May 26, 1972, amended September 1, 1972, which requires the preservation of statements of prospective witnesses and specifically states that “this includes an officer’s rough notes of the description of the perpetrator of a crime given by the victim or witness prior to the arrest of a suspect.”⁷ The materials are to be maintained in investigative case jackets and kept in secure file cabinets until the case to which they relate has been disposed of or for a three-year period if no criminal proceedings are initiated. Thus the government has, on the record in this case, met its obligation of setting up proper procedures for preservation of discoverable material.⁸ But Officer Nance did not comply with the prescribed procedure. He testified that although he could not remember what happened to the notes, it was his practice to put such material in his locker and that when he looked for the notes for the trial, he was unable to find them. Thus, the officer’s actions with regard to the preservation of the notes were negligent.

Before deciding whether sanctions should have been imposed, however, it is necessary to know whether the notes were Jencks Act statements and whether the substance of the notes was incorporated in other documents. Police notes in a particular case have been regarded as potentially Jencks Act statements. Hardy v. United States, D.C.App., 316 A.2d 867, 870 & n. 3 (1974). In other cases these notes have been thought to fall outside the Jencks Act because they are “rough”,⁹ “general”, “sketchy”, and/or “hasty”,¹⁰ and thus not verbatim statements of the witness. In a recent case eyewitness’ descriptions included in a lost court-work jacket were characterized in dictum as falling in this category when the court stated:

[I]t has been held that rough, investigative notes taken by police officers at the scene of a crime are not “substantially verbatim” statements within the coverage of the Jencks Act. United States v. Scriber, 163 U.S.App.D.C. 36, 43, 499 F.2d 1041, 1048 (1974).¹¹

The production of on-the-scene notes is in keeping with the purpose of the Act, to aid the search for truth by facilitating impeachment of the government’s witnesses.¹² There is no doubt that the notes in question here related to a crucial issue and that they might have served to discredit the testimony of the complaining witness. As in United States v. Bundy, 153 U.S.App.D.C. 191, 193, 472 F.2d 1266, 1268 (1972) (Leventhal, J., concurring), the notes might have permitted the defense to undercut subsequent identifications of appellants by showing that their actual appearances differed from the complainant’s initial description. As the court there stated, “[t]he initial description of an assailant by the victim or other eyewitness is crucial evidence, and the notes taken of that description should be kept and produced.” Id. at 192, 472 F.2d at 1267.

Even where the statements are Jencks material, however, the rule of production under the Act is subject to an exception if the substance of the notes was incorporated in other documents. Officer Nance testified that everything he had written down was broadcast on the original flash lookout. A transcript of the lookout was available, but was not produced.¹³ The burden of producing notes or explaining why this cannot be done is on the government, United States v. Augenblick, 393 U.S. 348, 355-56, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), and if the government wishes to meet its burden, it must come forward with an explanation, or, here, with material to bring it within the exception. Since it has not done so, the record is remanded for a hearing to determine whether Officer Nance’s notes constitute a statement producible under the Jencks Act and the correspondence of the lookout to the information transcribed by Officer Nance.

So ordered.

1 . 18 U.S.C. § 3500(b) (1970), provides:

After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

2 . Gibbs described Moore, of ■whom he had a good view for some minutes, as having a light brown complexion, being about his height (5'9"), wearing a bush haircut and having sharp features. Johnson, whom he saw only in profile, had a large bush haircut and his appearance and mannerisms reminded Gibbs of a mouse. As they departed the scene, Moore walked with long strides, with his hands in his pockets and his shoulders hunched. Johnson alternatively walked and ran with a hopping movement in order to keep up with Moore. These same movements attracted Gibbs’ attention when he saw appellants several weeks later.

3 . Gibbs at first denied making such a statement to the officer, but later said he might have done so but could not really remember.

4 . 18 U.S.C. § 3500(e) (1970), provides:

The term “statement”, as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means—

(1) a written. statement made by said witness and signed or otherwise adopted or approved by him ;

(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness, and recorded contemporaneously with the making of such oral statement; or

(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.

5 . Palermo v. United States, 360 U.S. 343, 351-52, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959).

6 . Banks v. United States, supra at 258-59; United States v. Bundy, 153 U.S.App.D.C. 191, 194, 472 F.2d 1266, 1269 (1972) (Leventhal, J., concurring).

7 . Three prior cases in this court have stressed the need to comply with this order. Hardy v. United States, D.C.App., 316 A.2d 867, 871 11.974) (Gallagher, J., concurring); Savage v. United States, D.C.App., 313 A.2d 880, 883-84 (1974); Banks v. United States, supra at 259.

8 . United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642, aff’d on remand, 145 U.S. App.D.C. 259, 448 F.2d 1182 (1971).

9 . United States v. Augenblick, 393 U.S. 348, 354, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969).

10 . United States v. Hines, 147 U.S.App.D.C. 249, 263-64, 455 F.2d 1317, 1331-32 (Bazelon, J., concurring and dissenting, cert. denied, 406 U.S. 969, 975, 92 S.Ct. 2427, 32 L.Ed.2d 669, 675 (1972).

11 . Compare the dissenting view of Judge Bazelon in United States v. Hines, supra note 10, 147 U.S.App.D.C. at 268, 455 F.2d at 1336: “[I]t would seem only reasonable that specific words of description would be written down in the course of even the roughest note-taking” and would thus constitute Jencks Act material.

12 . Hardy v. United States, supra at 869; United States v. Bryant, supra, 142 U.S.App. D.C. at 138, 439 F.2d at 648.

13 . The officer also transferred information given to him by complainant onto a PD Form 251. That form is not of record but it should also be investigated at the hearing on remand.