United States v. William H. Broadus

450 F.2d 1312
CourtCourt of Appeals for the D.C. Circuit
DecidedNovember 1, 1971
Docket23951
StatusPublished
Cited by3 cases

This text of 450 F.2d 1312 (United States v. William H. Broadus) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. William H. Broadus, 450 F.2d 1312 (D.C. Cir. 1971).

Opinions

FAHY, Senior Circuit Judge:

This appeal is from appellant’s convictions on two counts of robbery,1 the sentences of two to six years on each count to run concurrently. Jointly indicted and tried with him, but acquitted, was Edward E. Scott. Because of error in the trial court’s exclusion of certain evidence relevant to impeachment of two Government witnesses, we reverse appellant’s convictions.

I

The victims of the charged robberies were Mr. Ernest Gutierrez and Mr. Martin Gottlieb. On May 2, 1969, at about midnight, as Gutierrez and Gottlieb were returning to their car parked in a lot, Gutierrez noticed several men, one of whom wore a bright orange shirt, pass them by and then turn to follow them. Gutierrez and Gottlieb hurriedly got in their car, rolled up the windows, [1313]*1313and locked the doors. The men who followed them surrounded the car and threatened to kill them unless they opened the doors, which Gutierrez and Gottlieb then did. Appellant allegedly took Gutierrez’s watch and a five dollar bill, while co-defendant Scott allegedly stole Gottlieb’s watch.

The victims soon obtained the help of police officers Garden and Mason. As all four were returning to the scene of the robberies Gutierrez saw a large sedan with an orange-shirted driver. The officers stopped the sedan and arrested its five occupants. Upon searching the sedan and occupants the officers found a five dollar bill, folded in the same manner Gutierrez said he folded his money, in the possession of one of the five men —neither appellant nor his co-defendant Scott; and they also found Gutierrez’s watch partially hidden under the front seat. Assuming that two of the five occupants of the sedan could validly have been found by a jury to have committed the robberies, a question remains whether appellant was one of the two. As the case comes to us the Government’s position is that appellant personally robbed Gutierrez, not that he aided and abetted another in either robbery.

At the trial Gutierrez disclosed on cross-examination that during the morning of the trial he identified the photograph of appellant as the man in the orange shirt who stood by his side of the car and robbed him of his watch and money. At a hearing held out of the presence of the jury, Gutierrez testified that this photographic identification occurred in the prosecuting attorney’s office, with himself, Gottlieb, and Officer Garden present at the time. Upon the basis of the hearing, the court held that testimony concerning the out-of-court photographic identification was inadmissible under Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The court permitted Gutierrez, however, to make an in-court identification of appellant as the man in the orange shirt who robbed him, holding that it had a source independent of the photographic identification.

Appellant strongly urges error in the finding by the trial court that Gutierrez’s in-court identification of appellant as the robber was uninfluenced by the illegal photographic identification. The majority of the court believes that the solution of this problem might depend upon the outcome of this court’s pending en banc consideration of United States v. Ash, No. 22340, and accordingly would not now reach that issue. We do not deem it necessary, however, that our disposition of the appeal await the Ash decision, since we reverse appellant’s conviction for the reasons set forth in Part II.2

II

The Government at trial furnished defense counsel with the joint written summary of the grand jury testimony given by Gutierrez and Gottlieb, and also with the separate written summary of Officer Garden’s grand jury testimony. To avoid misunderstanding, it should be made clear that the term [1314]*1314“grand jury summary” refers to a statement given by a witness to a clerk in the Grand Jury Section of the United States Attorney’s Office describing the events about which he will testify before the grand jury. The clerk who prepares the summary does not hear the witness’ testimony before the grand jury. The joint summary of Gutierrez and Gottlieb was made eleven days after appellant’s arrest. Contrary to Gutierrez’s trial testimony that appellant was the man in the orange shirt on his side of the car who robbed him, the summary states that the man in the orange shirt was on Gottlieb’s side of the car. The summary of Officer Garden’s grand jury testimony says that Scott was the man in the orange shirt who drove the sedan. At trial Officer Garden testified that appellant was the man in the orange shirt. And in his report of the robberies on P. D. Form 251, prepared a few hours at most after their occurrence, appellant is described as wearing a leather jacket.

Defense counsel sought to use the joint summary of Gutierrez and Gottlieb to impeach Gutierrez’s credibility as a witness and also to use Officer Garden’s grand jury summary to impeach his credibility. The trial court denied defense counsel’s requests. We think this was reversible error. In view of the confused and uncertain situation which grew out of the differences between the earlier summaries of the witnesses and their trial testimony, it was important to make available to the jury their prior statements.

A. Counsel for co-defendant Scott objected to the use of Officer Garden’s summary for impeachment purposes on the ground it would bring before the jury the officer’s statement that Scott was the man wearing the orange shirt who drove the car. Counsel for appellant sought to alleviate this difficulty of Scott by excluding any reference in the summary to the driving of the car. This did not satisfy counsel for Scott. Appellant’s counsel then pressed his point that “[tjhis becomes crucial to our defense” and that “the jury is entitled to evaluate the probative effect of that testimony, because it puts the orange shirt on someone other than our defendant.” The court nevertheless ruled that Officer Garden’s grand jury summary was inadmissible, on the ground appellant’s trial counsel was “not impeaching him, because the officer clarified the situation in his testimony.” 3 The reference to Officer Garden’s clarifying testimony was to his statement out of the presence of the jury that there was “either misidentification or a typographical error” in the summary, although he previously had testified that he had no reason to believe that this statement had been incorrectly recorded in the summary.4

[1315]*1315We agree with appellant’s trial counsel that it was for the jury to evaluate Officer Garden’s grand jury summary and the weight it should have on the worth of his trial testimony that appellant was the one who wore the orange shirt and drove the car. The judge was not the one to resolve the issue of credibility or reliability which arose. The province of the jury included a duty to determine whether in light of the inconsistencies it should give credence to the officer’s trial testimony.

The Government contends that the trial court’s ’ruling was within the discretion available to the court with respect to impeaching evidence. We cannot agree. The summary was too important, and its authenticity is clear. Moreover, its exclusion was not in the exercise of a discretion by the court but was based on a definitive ruling that it was not impeaching evidence.

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Related

Moss v. United States
368 A.2d 1131 (District of Columbia Court of Appeals, 1977)
United States v. Joseph E. Smith
521 F.2d 957 (D.C. Circuit, 1975)
United States v. William H. Broadus
450 F.2d 1312 (D.C. Circuit, 1971)

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Bluebook (online)
450 F.2d 1312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-william-h-broadus-cadc-1971.