Williams v. United States

MACK, Associate Judge,

dissenting:

In what has become a traditional ritual this court today adds more confusion to the law interpreting the Jencks Act. 18 U.S.C. § 3500 (1970). Again we face factual circumstances where the identification of an assailant was a crucial issue and where police investigative notes recording the victim’s initial description of the assailant were not produced. Again this court, in seeking to uphold the trial court’s denial of a motion to apply the sanctions of the Act, adds new dimensions to the statute. This time we assess the reasonableness of the trial court’s action by a “totality of circumstances” approach 1 borrowed from a recent Supreme Court analysis as to whether due process compels the exclusion at trial of pretrial identification evidence obtained by unnecessary and suggestive police procedure. See Manson v. Brathwaite, 97 S.Ct. 2243 (1977). See also Fields v. United States, D.C.App., 368 A.2d 537 (1977), where we applied the “independent source doctrine” to justify a trial court’s refusal, under the Jencks Act, to strike identification testimony. 2

I do not argue for “automatic” application of Jencks Act sanctions. In my view of the law, however, whenever a statement *766 found to be producible under the statute has been destroyed by the police under certain circumstances (see fn. 5 infra), and results in the loss of crucial evidence, the application of a sanction is mandated.

Until today, it has never been questioned in this case that the written statement in issue was other than one producible under the terms of subsection (e)(1) of the Act as one “adopted and approved” by the witness-victim. The finding that it indeed was producible is implicit in the trial court’s ruling, is supported by the evidence, and the government does not contend otherwise. 3

As to circumstances of the statement’s destruction, although the finding of the trial court is not clear, I think the language used 4 comes closest to saying that the statement was not destroyed in bad faith or negligence, but purposefully (after the police decided to file a “contact report” in lieu of an “offense report”) though with bad judgment. This finding therefore was not a reason per se for refusing to impose a sanction. 5 There is every reason for deterring the immediate destruction of the description of an alleged rapist before an arrest is made — even under circumstances where it is doubtful that a complaint will be made. 6 The importance of preservation is evident here where, when prosecution was ultimately brought, the testimony of the victim herself, the sole eyewitness, revealed inconsistent descriptions of her attacker. In our consideration of “lost” notes we have warned that “ ‘[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.’ ” Moore v. United States, D.C.App., *767 358 A.2d 16, 19 , aff’d after remand, D.C. App., 363 A.2d 288 (1976) quoting United States v. Bundy, 153 U.S.App.D.C. 191, 192 , 472 F.2d 1266, 1267 (1972) (Leventhal, J., concurring).

It is true that the trial court specifically found that, the police, because of the barriers thrown in the way of their investigation by uncooperative complainants, had in good faith destroyed information which they thought they would not need. The finding implies that the government was neither malicious, negligent nor stupid — suggesting that the court may have assumed that this was the end of the matter and that it need not go through the “balancing” process of weighing culpability of government conduct against other factors. See United States v. Perry, 153 U.S.App.D.C. 89 , 471 F.2d 1057 (1972).

I think that the court was required at the very least to weigh other factors under these circumstances where there was admittedly bad judgment in the destruction of the notes. However, I do not read the balancing approach adopted in this jurisdiction as does the majority. As I see it, the conduct of the government is to be weighed by the trial court against the importance of the evidence lost and the evidence of guilt adduced at trial. Jones v. United States, D.C.App., 343 A.2d 346 (1975); Hardy v. United States, D.C.App., 316 A.2d 867 (1974); Perry, supra. And quite apart from the fact that the trial court made no findings as to these factors, I have the greatest difficulty in following the claimed analogous “weighing” of the “totality of circumstances” by the majority. Thus the majority argues that the application of the only meaningful sanction (i. e., the striking of the victim’s testimony) would result in “the total exclusion of the only identification evidence which was available.” To me this only emphasized the fact that the notes reciting the victim’s initial description of the offender might have been crucial for impeachment purposes. And the fact that such exclusion would “surely make prosecution impossible” (of an accused who says he was not on the scene) is hardly a relevant circumstance to be balanced.

I would remand for further findings by the trial court on the issues of the importance of the evidence lost and the risk of prejudice to the defense — keeping in mind that the victim herself testified as to the initial description she gave to the police and that this description might have been incorporated into a broadcast made’ available to the defense in a transcription. See Perry, supra.

. I note that the Supreme Court has avoided extending the “totality of circumstances” standard across the board in evaluating exclusionary rules. See Moore v. Illinois, 434 U.S. 220 , 98 S.Ct. 458 , 54 L.Ed.2d 424 (1977) (Mr. Justice Rehnquist, concurring).

. Obviously, I do not suggest that interpretations of the constitutional exclusionary rules and their modifications weighing the risks of misidentification are less important than the Jencks statute. I only suggest there is a statute with a legislative mandate.

.The trial court observed that “there is no question in my mind but that Mr. Williams has a right to whatever notes were taken on December 24 by whoever took the notes.” The observation was made subsequent to the time the court had heard the victim testify that, after an officer wrote down the description she , had given, that:

A. Well, they went over it and I told them it was correct, you know. They had stated what I was saying and I told them it was correct.

Q. [By the prosecutor] He had written some material down; is that correct?

A. Yes.

Q. And that he read it back to you and asked you if it was correct; is that also correct?

A. Right.

Q. And when he read it back to you and asked you if it was correct; is that also correct?

A. Right.

Q. And when he read back the same material to you did you indicate that which you told him that he had written down was accurate.

A. That’s right. 1 did.

Thereafter the court concerned itself with the circumstances of the destruction of the notes.

The government does not question the produ-cibility of the notes — indeed concedes that the officer made a mistake in not retaining the description — and the appellant suggests that the notes, in addition to being “adopted and approved” by the witness-victim could also be argued to be “a substantially verbatim recital of an oral statement made by said witness . and recorded contemporaneously with the making of said oral statement.” 18 U.S.C. § 3500 (e)(2) (1970).

. The court spoke of the Form 251 being destroyed in ignorance rather than negligence. While she said that she had no reason to believe it was “intentionally” destroyed, she explained that it was done so on the belief (even though the Form 253 could have carried almost the identical information) that there was no case and no reason to retain this form, noting that “we can think of what would have been the better course rather than what was the course.”

. The trial court, before imposing a sanction, need only find that the government’s conduct amounted to one of the following (1) negligence and bad motive, (2) negligence and bad judgment, (3) purposeful destruction and bad motive, or (4) purposeful destruction and bad judgment. See Hardy v. United States, D.C. App., 316 A.2d 867, 870 (1974) quoting United States v. Perry, 153 U.S.App.D.C. 89, 99 , 471 F.2d 1057, 1067 (1972). Fields v. United States, supra at 541, 547.

. In destroying the “offense report,” the officer did not transfer the description of the alleged offender to the space provided for the same on the “contact report.” To this extent he was not following normal practice. See United States v. Carrasco, 537 F.2d 372 (9th Cir. 1976), where convictions were reversed because the trial court refused to strike the testimony of a key government witness whose written statement had been destroyed in good faith following routine procedure.