United States v. Joseph A. Bundy

472 F.2d 1266, 153 U.S. App. D.C. 191, 1972 U.S. App. LEXIS 8683

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 30, 1972
• Docket: 24803
• Status: Published

Opinions

PER CURIAM:

On October 24, 1969, Joseph Calan was robbed of 20 one-dollar bills and some small change at gunpoint. He immediately called the police and was interrogated at the scene of the crime by an Officer Brown. Brown immediately relayed a description of the robber over the police radio as “Negro male, eighteen years, * * * wearing a black raincoat and medium green pants.”

Within a few minutes, patrol officers Borden and Hall received the broadcast and observed appellant, who was wearing a black raincoat and green pants, stoop behind a parked car when he spotted the police. The officers called him over and recovered 20 one-dollar bills between the curb and the tire of the parked car. After a thorough search of the area, no gun was found. The victim of the robbery, Mr. Calan, identified appellant in a lineup several days later. Appellant was tried and convicted of armed robbery and assault with a dangerous weapon.

ti] The only issue of substance in this appeal is appellant’s claim that the notes taken by Officer Brown during his interrogation of Calan should have been produced under the Jencks Act, 18 U.S. C. § 3500 (1970), and under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The initial description of an assailant by the victim or other eye witness is crucial evidence, and the notes taken of that description should be kept and produced.¹ The formal written police report of the crime does, of course, contain a description of the offender, but that report is often prepared after a suspect is arrested and the danger that the description in the formal report may be subconsciously influenced by the viewing of the suspect by the author of the report is very great. Thus, unless the trial judge is able to see the original notes, it may be difficult, if not impossible, to determine whether or not they should be made available to the defendant under Brady or the Jencks Act.

Here, however, the failure to produce the original notes was harmless beyond a reasonable doubt.² Appellant was arrested on the basis of the police radio “lookout” broadcast immediately after the offense and he was picked up within minutes of the offense with the stolen money. We will not countenance avoidance of our rule that original notes be preserved unless the harmlessness is as self-evident as it is in this case. Otherwise, the prophylactic purpose of our rule is frustrated.³

Affirmed.

1 . United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971).

2 . Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

3 . We are pleased to note that pursuant to the opinion of this court in United States v. Bryant, supra note 1, the Metropolitan Police of the District of Columbia, on May 26, 1972, issued General Order Series 601, No. 2. That general order reads in pertinent part:

Recent court decisions establish for Government investigative agencies, in-eluding this department, a duty to preserve all material which constitutes, or might constitute, evidence, or might otherwise be pertinent in a subsequent criminal judicial proceeding. The purpose of this order is to establish guidelines for the preservation of all such evidence, not presently required to be preserved pursuant to existing departmental orders, which may be required to be produced in such a proceeding. This order consists of the following parts: PART I Responsibilities and Procedures for Members of the Department PART II Responsibilities and Procedures for Supervisory and Command Personnel PART I

A. General.

In addition to materials which are required to be preserved pursuant to existing departmental orders, such as fingerprints preserved by the Identification Branch, or items which are required to be turned over to the Property Clerk and listed on the property book, members of the department shall preserve all potentially discoverable material, including any such material which might prove favorable to an accused.

B. Definitions.

Potentially discoverable material includes, but is not necessarily limited to, such items as tangible documents, reports, tapes, transcripts of tapes, and photographs. The following are examples :

3. Any notes taken by a member of the department which are a substantially verbatim recital of an oral statement made by a prospective witness or defendant which are recorded contemporaneously with the making of the oral statement;

6. All other materials which reasonably may be expected to be relevant in a criminal judicial proceeding. Any doubt as to whether a particular item may be relevant and therefore preservable shall be resolved in favor of preservation pursuant to the terms of this order.

It appears to the court that the “[a]ll other materials” provision in Part I B 6 is intended to include police rough notes of the description of the assailant as given by the victim prior to the arrest of the suspect.