Wiggins v. United States

386 A.2d 1171, 1978 D.C. App. LEXIS 516

• Court: District of Columbia Court of Appeals
• Decided: April 24, 1978
• Docket: 11561
• Status: Published

Opinions

YEAGLEY, Associate Judge:

Appellant was convicted by a jury on August 16,1976, of one count of robbery, in violation of D.C.Code 1973, § 22-2901. On October 15,1976, the court suspended imposition of sentence and placed appellant on three years’ probation under 18 U.S.C. § 5010(a) (1970).

The case grew out of the following fact situation. On March 12,1976, the complainant was accosted as he was returning to his car after leaving a branch of the National Bank of Washington at 7601 Georgia Avenue, N.W. The assailant attempted to take from the complainant a brown paper bag in which the latter had placed money received at the bank. After a struggle, the assailant grabbed the bag and ran away. Mr. Kenneth Dual observed this altercation. He followed appellant from the scene, saw him exchange clothing and give the paper bag to a woman waiting in a white Cadillac, and alerted police officers, who arrested appellant and returned him immediately to the bank. At the bank, complainant identified appellant, as did Mr. Dual and a teller.

At trial, appellant was again identified by both complainant and Mr. Dual, and by Mary Lumpkin, who lived near the bank and who testified that on the afternoon of March 12, she observed appellant running through an alley and across her backyard, carrying a paper bag.

Appellant’s defense was mistaken identity. He also presented four witnesses who testified to his good reputation for peacefulness and veracity.

This appeal presents for resolution the question whether the trial court erred in refusing to grant appellant’s requests that it order the government to produce a transcript of the grand jury testimony of three witnesses who allegedly gave testimony favorable to appellant, and who were not called by the government as witnesses at trial.¹ Appellant contends that this refusal violated his due process right to exculpatory material recognized in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the trial court abused its discretion in denying appellant’s request for production of this testimony under then effective Super.Ct.Cr.R. 16(b).²

We turn first to appellant’s Brady claim. In Brady, the Court held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196. In the instant case, three factors fatally undermine appellant’s contention that the evidence which he requested was suppressed, as Brady envisions that term.

First, the government disclosed to the defense the identity of witnesses whose grand jury testimony might be favorable.³ Such a procedure was held to satisfy Brady in United States v. Ruggiero, 472 F.2d 599, 603-05 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2772, 37 L.Ed.2d 398 (1973). There, the court said:

Here the appellant was on notice of the essential facts required to enable him to take advantage of such exculpatory testimony . . . . He was also well aware of the process by which they could be compelled to testify at trial. As long as they could be subpoenaed to testify, their grand jury testimony, if offered in their absence, would have been excluded as hearsay. If appellant wanted their testimony, the obvious and logical course was to subpoena them and put them on the witness stand. [Id. at 604-05.]

See also United States v. Natale, 526 F.2d 1160, 1170-71 (2d Cir. 1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976).

A second factor cutting against our finding suppression is that the record contains the prosecutor’s unchallenged statement to the trial court that he had read to defense counsel a substantially verbatim account of the grand jury testimony here in issue.

Third, with regard to the grand jury testimony of Mr. Barnes, we note that he appeared as a defense witness at trial, and that his trial testimony mirrored the account of the robbery which he gave to the grand jury.⁴

Under these circumstances, there was simply no suppression of evidence, and we do not have before us the kind of unfairness to which Brady addressed itself. We hold that the trial court did not violate appellant’s Brady rights by denying production of the grand jury transcripts.

This holding is not, however, dis-positive of appellant’s remaining contention that the trial court abused its discretion in denying his timely and repeated requests for production of the grand jury transcripts under Super.Ct.Cr.R. 16(b). Although this rule was amended subsequently, we must, of course, resolve appellant’s contention in light of the rule applicable when the requests were made. (See note 2, supra.)

Brady mandates retrospective analysis; in the instant case we have, in hindsight, determined that appellant was not denied a fair trial in a manner which that case proscribes. Review of a contention under then effective Rule 16 is controlled by a different consideration. The rule purported to provide a criminal defendant with an opportunity to develop his case, and to require the trial court, in exercising its discretion, to make a prospective assessment of the potential value of the evidence requested by the defendant. The rule required that the defendant demonstrate the materiality of the requested evidence and that the request be reasonable, insofar as compliance would not unduly burden the government. With respect to the latter of the two requirements, there is no assertion on the record that the government could not have logistically complied with appellant’s request.⁵ With respect to the former, we cannot say, again with reference to the record, that the requested evidence was so patently lacking in materiality as to justify the trial court’s denial of appellant’s requests without an in camera investigation of the contents of the material sought.⁶

We hold that the trial court abused its discretion in not examining this material before ruling on appellant’s requests. We do not hold that such inspection is necessary in all circumstances, but we emphasize that trial courts must be solicitous of discovery motions and careful not to deprive a defendant of a critical, statutorily, provided defense tool.

Finally, however, review of the entire record convinces us that the trial court’s error in this case was harmless, inasmuch as the judgment was not swayed substantially, if at all, by the error. Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). The grand jury testimony of which appellant was prospectively and erroneously deprived was brought to appellant’s attention subsequently and, in any event, would have done nothing to strengthen his defense against the instant charge.⁷

Appellant’s conviction is

Affirmed.

1 . At a discovery conference held in May 1976, the government informed appellant’s counsel that two individuals, Ernest Barnes and Harry Lumpkin, had stated to police at the time of appellant’s arrest that appellant was not the assailant. After these individuals testified before the grand jury, the government provided appellant’s counsel with their names and a summary of their testimony. The government refused to provide transcripts of the grand jury testimony of these witnesses.

Appellant moved orally under then effective Super.Ct.Cr.R. 16(b) for a transcript of Mr. Barnes’ testimony, and subsequently filed a written memorandum, broadening his request to include transcripts of the grand jury testimony of all witnesses whom the government did not intend to call at trial, which included Mr. Barnes, Mr. Lumpkin, and Mr. Calvin Jones.

2 . Prior to amendment, and at the time of appellant’s trial, Rule 16(b) provided:

Other Books, Papers, Documents, Tangible Objects or Places. Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies of portions thereof, which are within the possession, custody or control of the government, upon a showing of materiality to the preparation of his defense and that the request is reasonable.

3 . We do not, of course, disagree with appellant’s observation that grand jury testimony is subject to the duty to disclose under Brady. E. g., United States v. Anderson, 368 F.Supp. 1253, 1262-63 (D.Md.1973); United States v. Leta, 60 F.R.D. 127, 131 (M.D.Pa.1973); United States v. Sink, 56 F.R.D. 365, 367 (E.D.Pa.1972). We find that under the circumstances here presented, this duty was met.

4 .Mr. Barnes testified both before the grand jury and at trial that shortly after 5 p. m. on the day in question, as he was getting into his car behind his place of employment, he saw someone run through the alley with a paper bag in his hand, and disappear. According to Mr. Barnes, appellant appeared at about this time and was going north on 9th Street when police grabbed him. Mr. Barnes testified that the man under arrest was not the same man who had run past him with the paper bag.

We observe, parenthetically, that Mr. Barnes was the only grand jury witness here at issue whose testimony can truly be considered favorable to appellant and thus material to his defense within the meaning of Brady. See Smith v. United States, D.C.App., 363 A.2d 667, 668-69 (1976).

Mr. Howard Lumpkin testified that on the afternoon of March 12, his wife callee! him to the window of their home after she saw a man jump the fence backing on their property. Mr. Lumpkin went outdoors, saw a white Cadillac pulling away from the curb, but did not get a good look at the individual driving. Mr. Lump-kin later went to the bank and told police that the man they had picked up — appellant—could not be the man who had run through his yard, because that man had left the scene in the white Cadillac. Mr. Lumpkin told the grand jury, however, that he had first mistakenly assumed that appellant was in the car, and that a subsequent conversation with his wife convinced him that another person might have been driving the Cadillac, and that appellant could have been the man who ran through his yard. Indeed, Mr. Dual testified that the car was in fact driven by a woman, and that appellant did not enter the car at the time in question.

Mr. Calvin Jones also testified. He said he lived with appellant and appellant’s mother, owned a white Cadillac with a white vinyl top, but asserted that appellant had never driven this vehicle. The testimony of Mr. Lumpkin and Mr. Jones cannot be realistically regarded as favorable to appellant, and may, in fact, be construed to cut the other way.

5 . Cf. e. g., United States v. Ross, 511 F.2d 757 (5th Cir.), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975) (general descriptions of material sought and conclusory assertions of materiality insufficient); United States v. Jordan, 399 F.2d 610, 615 (2d Cir.), cert. denied, 393 U.S. 1005, 89 S.Ct. 496, 21 L.Ed.2d 469 (1968) (request for all material which might be useful to defense unreasonable); United States v. Crisona, 271 F.Supp. 150, 158 (S.D.N.Y.1967) (request for any correspondence, memoranda, or other writing not reasonable); United States v. Soyka, 265 F.Supp. 126, 129 (S.D.N.Y.1967) (request for all government records, papers, and documents not reasonable); United States v. Louis Carreau, Inc., 42 F.R.D. 408, 416 (S.D.N.Y.1967) (blanket request not reasonable).

6 . See United States v. Eley, 335 F.Supp. 353 (N.D.Ga.1972); United States v. Leichtfuss, 331 F.Supp. 723 (N.D.Ill.1971).

7 . Cf. Levin v. Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287 (1966).