United States v. Tommie Louis Brown, United States of America v. Virgil David Swain, United States of America v. Robert Lee Nobles

KILKENNY, Circuit Judge

(concurring and dissenting):

BROWN AND SWAIN APPEALS

I concur in the affirmances of the Brown and Swain convictions, but not for the reasons stated by the majority. It is my considered judgment that the records on these appeals are free from error.

NOBLES’ APPEAL

Turning now to the Nobles’ appeal, I find myself in complete disagreement *158 with the conclusions of the majority on the issue of impeachment by the defense witness, Bond. 1 To understand the issue, it is necessary to outline in detail the events leading up to the action of the trial judge.

On direct examination, the government witness Hoffman identified Nobles as the robber standing under the surveillance camera and also identified him from a photo spread and at a police line-up prior to trial. On cross-examination, Nobles’ attorney asked Hoffman, “And isn’t it a fact that you told Mr. Bond that to you all the blacks appear to be alike?” Hoffman responded, “I don’t believe I indicated that to him.” Continuing, the attorney inquired, “You do not recall stating that to Mr. Bond?” Hoffman replied, “No, I do not.” Nobles’ attorney repeated, “That all blacks look alike.” Hoffman responded, “No, I do not, sir.” At that time, in the bench conversation outside the presence of the jury, the prosecutor requested defense counsel to furnish a copy of “any interview, notes or recorded statements of Mr. Bond — in regard to a phone call.”, 2 and noted “I notice he has a copy, and I would like to have a copy of that at this time before I am able to proceed with redirect examination of the witness.” Defense counsel objected. The judge indicated sympathy with the government’s view and asked defense counsel to furnish authority indicating that the government was not entitled to the memorandum. After defense counsel, for the second time, rejected the demand of the prosecutor to see the document, the judge conducted a hearing and held that the prosecutor was not entitled to see the investigator’s memorandum until Bond took the witness stand and impeached Hoffman’s testimony in connection with the memorandum, and then only to the extent that any and all statements of any defendant be excised prior to the delivery to the prosecutor. 3

Later, defense counsel called Bond. The court inquired as to the nature of Bond’s testimony. Counsel responded that the witness would testify as to certain photographs and that “. . .he is going to impeach two statements of Mr. Hoffman.” The court then inquired of defense counsel whether he would turn over, at the completion of Bond’s testimony, the relevant portions of the document to the prosecution. Defense counsel refused. The court thereupon indicated that those portions of the testimony dealing with the impeachment would be excluded. 4 After an extended colloquy in which the judge fully ex *159 plained that he would only require the defense to permit inspection of those portions of the memorandum which dealt with the impeaching questions propounded to Hoffman, the court offered to expedite the trial by examining the report in camera and there excise such portions not relevant to the Hoffman impeachment.' Defense counsel again rejected the court’s offer with a statement of his position. 5 Defense counsel then proceeded with the examination of Bond as a defense witness, but did not ask him whether or not Hoffman had made the statement during the telephone conversation of April 6, 1973, “. that all blacks appear to be alike.”

Obviously, the appellant is in no better position than if Bond had been called, testified that Hoffman had made the statements and on cross-examination was asked if he had made any notes at the time of the telephone conversation, responded that he had and then the prosecutor had asked for the production of the notes. If defense counsel, after a direct order from the judge, failed to produce the notes for inspection, the judge, no doubt, would have ordered the testimony stricken and the jury would have been instructed to disregard it. Here, as often happens in a well-tried case, the judge and the attorneys anticipated the problem and defense counsel was saved the embarrassment of having the testimony stricken in the presence of the jury. It may have been a good trial tactic, but I do not believe appellant is entitled to cash in on it.

The record is clear that defense counsel had the Bond statement on his desk and was utilizing it in connection with the cross-examination of Hoffman. If the trial had followed the customary course and Bond had taken the witness stand, without the preliminary discussions and the court’s advisory ruling on ■the production of the statement, Bond, no doubt, would have said that he used the statement to refresh his memory. For that matter, the record of the proceedings necessarily points to this conclusion. Additionally, there was nothing amateurish about defense counsel’s performance and it would be doing him a great injustice to assume that he did not properly prepare the witness by having him read the memorandum. In these circumstances, the price a defendant must pay for having a witness take the witness stand, and testify contrary to declarations of another witness, is to throw open the entire subject to normal cross-examination and to make his testimony vulnerable where, otherwise, it might have been shielded. Surely, the appellant cannot claim for this witness a right which was not available to himself if he had taken the witness stand under the same circumstances.

Closely in point is Harris v. New York, 401 U.S. 222 , 91 S.Ct. 643 , 28 L.Ed.2d 1 (1971), where the court approved the introduction of a statement on cross-examination which could not have constitutionally been utilized on the direct examination of the defendant. There the court held that the defendant, having voluntarily taken the stand, was under an obligation to speak truthfully and accurately, and that in confronting him with his previous statement, the prosecution was doing no more than utilizing the traditional truth-testing devices of the adversary process. Here, if produced, the memorandum might show that Bond did not include the alleged material forming the basis for the im *160 peaching questions to Hoffmañ. If that were true, the integrity of Bond’s testimony would be severely diminished. The prosecutor, in requesting the production of the statement for cross-examination, was doing “. . . no more than utilizing] the traditional truth-testing devices of the adversary process.” 401 U.S. at 225 , 91 S.Ct. at 645 . One of the most common practices employed in the art of cross-examination is to ask for theproduction of any notes or statements which a witness may have used to refresh his recollection.

The purpose of a trial is to develop the truth, not suppress it. We can assume that appellant’s counsel was not playing games and that the memorandum probably made no reference to the impeachment questions propounded to the witness Hoffman. Otherwise, there would be no logical reason for the refusal to produce it.

My conclusions with reference to the questions propounded to Hoffman are equally applicable to the questions propounded to the witness Van Gemeren.

We are not here confronted with pretrial discovery proceedings, such as those before the court in the California cases cited by the majority, and United States v. Fratello, 44 F.R.D. 444, 449, 451 (S.D.N.Y.1968), speaking to the same type of procedure. Much more akin to our problem, as recognized by the majority, is Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970), where a state notice of alibi statute was upheld in the face of a Fifth Amendment constitutional challenge.

United States v. Wright, 489 F.2d 1181 (C.A. D.C.1973), is closer to the target, but is distinguishable on at least three important grounds: (1) in Wright the order was overly broad and required defense counsel to surrender for inspection the entire report, rather than the specific portions relevant only to the impeaching question; (2) there, the prosecutor was seeking the statement to use it as substantive evidence, rather than for impeachment purposes; and (3) Wright recognizes, as a Hornbook rule of evidence, that had the investigator used parts of his report to refresh his recollection, the prosecution would be entitled to examine those parts of the report relating to impeachment, and would be permitted to make use of them in the cross-examination. The opinion then goes on to emphasize that the investigator did not use the report to refresh his recollection. In Wright , there was evidently nothing in the record to warrant the court in assuming that the statement in the investigative report was used by the witness to refresh his recollection. Here, as previously mentioned, I feel that the presence of the statement on counsel table, his use of the statement in interrogating Hoffman and his lengthy colloquy with the court and opposing counsel would clearly indicate that Bond had so refreshed his recollection.

Rule 612, Proposed Federal Rules of Evidence, as submitted to the Congress by the Supreme Court, permits an adversary to inspect, cross-examine on and offer in evidence portions of a writing used by a witness to refresh his recollection either before or while testifying. The House has proposed an amendment which would require the court, in its discretion, to pass on whether the interests of justice would be served by divulging the contents of the writing. The proposed legislation is in line with the in camera inspection here suggested by the trial judge. In any event, it is crystal clear that the decision in Wright turns on the overbroadness of the order requiring the production of the report. We quote from page 1189:

“In addition, the rules governing documents used to refresh recollection could in no event justify requiring Reeves to turn over his entire investigative report to the prosecution. As a defense witness Reeves testified only as to two matters — his interview with Richardson on January 19 and his examination of the lighting conditions at the scene of the crime. Assuming they had been used to refresh his rec *161 ollection at trial, those parts of his investigative report relative to this testimony and of possible use to the Government in cross-examining Reeves with respect to this testimony would have to be turned over to the prosecution.

* * * * *■ x-

“Even if Reeves used the report to refresh his recollection, only those parts of the report relating to his testimony on direct need have been turned over to the Government.”

Here, the majority concedes that the order was stated with precision and limited to the challenged areas of impeachment.

As repeatedly stated by the trial judge, we are not here concerned with the Jencks Act, 18 U.S.C. § 3500 , or with Rule 16, F.R.Crim.P. Our problem centers on a simple common law eviden-tiary question of whether a witness, who was called for impeachment purposes, must produce the notes he admittedly made on the subject of impeachment.

Finding no error, I would affirm the judgment of the lower court.

. Chief Investigator, Federal Public Defenders Association.

. It is conceded that the conversation was by way of phone.

. “THE COURT: . . . The Court is going to rule as follows: first of all, the government may not have the memorandum until the witness has taken the stand and has indicated the particular impeaching testimony which was the last part of Mr. Hoffman’s testimony relative to his inability to distinguisli between people of the black race. And if he does make such a statement, if he and Mr. Bond make such a statement, then I believe the government is entitled to an examination of the memorandum — not before that time — but after that time, after he lias completed his entire testimony ....

* * * * :¡:

“TI-IE COURT: I will say this to assist you, Mr. Allis, while I think about it. I am sure there are no statements of any of the defendants contained in this particular memorandum, and my order is going only to this particular memorandum. I am not generalizing on any other memorandum or memo-randa which you may have. It goes only to this particular memorandum involving the particular witness Iloffman. If you represent to me that there are matters contained therein, such as recitals by the defendants or your defendant, of course, I would view it imperative that you have the opportunity to excise that, perhaps after an in-camera session with the Court, or something of that nature.” [R.T. 470-471].

. “THE COURT: Mr. Allis is an officer of the court, and [if] Mr. Bond is allowed to testify it would be necessary that those portions of Mr. Bond’s investigative report which contain the statements of the impeached witness will have to be turned over to the prosecution; nothing else in that report.

*159 “If Mr. Allis indicates to me that lie refuses to do that, then I am not going to allow the particular witness to testify in that area. Now, it is entirely up to Mr. Allis as to what portion, if any, of Mr. Bond’s testimony he wishes to elicit.” [R.T. 520].

. “MR. ALLIS: My position at this time, your Honor, Rule 16 is that the other discovery consents in the Federal Court, that the Fourth, Fifth and Ninth Amendments protect the defendant in whose possession the reports are from turning them over for any reason.

“THE COURT: We are not talking about pretrial discovery. This is post testimony discovery. It has been carefully considered by the Court, and I am narrowing my ruling to the very specific area.” [R.T. 526].