*2 BELSON, Bеfore MACK and NEBEKER, Judges, and Associate Judge, Retired.** Associate NEBEKER, Judge, Retired: Associate trial, Roy Following jury appellant Gib- of son was convicted murder first murder), degree (felony armed D.C. while (1981), (1987 Supp.); Code 22-2401 -3202 §§ robbery, 22- two counts of armed id. §§ (1987 (1981), Supp.); -3202 and as- robbery while with intent commit sault (1987 armed, id. §§ (1981), -3202 22-501 Supp.). appeal,1 contends On Gibson its exclud- trial court abused ing expert testimony which was certain showing sought purpose bias on of government witnesses. part various claims the exclusion violated Gibson also rights. In his second his sixth amendment issue, argues an of discretion abuse to strike its failure government witnesses testimony of two ** originally appeal consolidated Judge was this 1. Gibson’s Judge Nebeker was an Associate Martin. of his codefendant Nathaniel with that argued. His time was court at the the case disposition of of the nature our Because Retired, changed Judge, to Associate status been entered appeals, an order has now two vacating September order. earlier consolidation teleрhone whose recorded calls to the information based received in number were calls. erased thereby purposes made unavailable for the Gibson was identified three Act, the Jencks U.S.C. 3500 § Cooper’s shop individuals who dur- appeal third issue involves the trial robbery shooting. Gail John- in camera review a radio trans- court’s son identified a photograph Gibson from police dispatchers mission between and the array shown to her *3 field the units and court’s determination during investigation evening their on the that run” the “radio contained no Jencks the crime. Johnson also testified that Gib- material. Gibson claims the court trial spoke son to days her two after the rob- erred in its and he asks this bery in regarding participation his the inci- independent to make an the review of radio Jessup identify dent. Melvin to failed Gib- We affirm. transmission. police photograph array; son from the however, lineup at a that Melvin attended government’s evidence at trial estab- 4, 1983, May point on he did out Gibson as February lished that on the afternoon of cross-examination, one of the robbers. On 17, 1983, men, including several armed Na- illegal Melvin that an numbers oper- denied Martin, thaniel shop entered a barber Cooper’s ation shop. was conducted from Street, Northwest, Washington, 1812 7th Sampson photo- the Cannon did not view Appellant shop D.C. Gibson and owner graph array, May lineup but at the 4th he Spurgeon Cooper, as well as number of a made an identification of Gibson after hear- persons, other in already рresent were the of the in the lineup each individuals shop when armed men Mar- the entered. speak a few words. was cross-ex- Cannon tin, wielding gun, who was a announced the possession amined about his 1979 arrest “stickup” everyone fact of a and ordered to illegal slips. numbers He admitted to time, shop. the rear of the At the same the that playing numbers but denied Coo- Gibson a displayed proceeded knife and to shop illegal per’s gam- was the scene of Jessup take from of the $220 Melvin—оne bling. persons shop. in the As directed Martin prem- Gibson’s defense was based people money, the other to hand over their Cooper’s shop ise that was a front barber shop Cooper owner moved up stood operation game, of a numbers away from he to where had been ordered police Gibson informed the the fact that Cooper remain seated. Martin after shot operation of the when he was interviewed another yelled of the robbers for him to do during the course their investi- by them witnesses, government’s so. One of the robbery. gation few weeks after the Gib- a Melvin, Jessup the identified Gibson as rob- counsel, in statement to opening son’s an Cooper. ber who exhorted Martin to shoot persons who jury, theorized that shot, After Martin fired all of the as- shop were in when the robbers entered sailants fled store. game. in illegal were involved numbers persons Two of the who in the had been Furthermore, argued defense counsel shop during robbery called as one of people those identified Gibson emergency immediately number after the informa- robbers in order to discredit Jessup incident. Melvin was the first to gave police tion he about numbers number; he thereby reducing chance that operation, spoke police to a official for three to four illegal gam- they charged be regarding robbery minutes and shoot- bling. Although able outline ing. call, Sampson Shortly after in opening his defense his statement and telephoned number. witnesses, Cannon also the 911 crоss-examine the spoke dispatcher He what to a and related court did not allow Gibson to trial happened shop. had After present expert in barber a de- testimony from calls, receiving dispatcher com- in the 911 tective who had been involved a municated, shop “radio investigation in is known as a for viola- what barber run,” gambling providing tions of laws. units the field regarding testimony his
I servation. occurring in limited to Cooper was events Gibson contends that continued, However, as the voir dire excluding its court abused permitted discuss the the detective was expert testimony offered to show that was information he had sources of past Cooper’s shop barber opin- 1979 to form current relied since his operation. the scene been numbers was, ongoing gambling at Coo- Gibson ion about the The exclusion dire, claims, ruling evidentiary as per’s. an erroneous At the conclusion of the voir as a violation of his sixth amendment proffered well ruled ex- the trial court present a confront right to defеnse and to Rafferty’s would not be pert against disagree. witnesses him. We explained The exclusion was admissible. Rafferty’s opinions fact that part by the sought expert testimony that Gibson gambling Cooper’s activities about have admitted of Detective was that hearsay strictly materials and based Rafferty. Drawing on his exten- Robert *4 knowledge personal and observation. on experience Metropolitan with Po- sive the excluding other reason for the The court’s Department, including years licе over three testimony relevancy. that it gambling liquor squad, and Raffer- was lacked on the qualified gam- ty, expert as a in numbers determining trial court In whether the bling, have testified as to how an disallowing the ex- its discretion in abused illegal operation In numbers is conducted. the pert testimony, we first review must addition, Rafferty given his would have testimony for which the was reasons shop opinion Cooper’s that decedent barber attempt- for sought. Counsel Gibson was past in numbers had been the site of a testimony through Rafferty’s ing to show operation. Cooper conducting was a numbers that detective, During testi- a voir dire of the Consequently, game shop. in his barber Rafferty’s elicited knowl- mony was about intended the defense to establish spe- edge gambling of the activities which partici- frequenting shop were people shop. cifically place Cooper’s took at had illegal gambling in and thus pating Rafferty When Gibson’s counsel examined both honest a motive to be “less than respect to the of that knowl- extent imрlicate testimony ... and ... their Rafferty edge, government objected Gibson, knowledge had of the who Mr. relying anything personal his on more than essence, the shop].” In operation [at regarding gambling observations activi- of testimony pertained to the bias observations, respect ties. With to those Gib- government witnesses who identified Rafferty in 1979 a Detective had assisted as one robbers. son in the of a search McClanahan execution trial at We note outset Cooper’s at that time con- wаrrant and at raising should be viewed as court’s action Cooper cluded that was a numbers writer.2 relevancy, issue rather than an issue of an 1979, working Rafferty Since had not been proper expert testim matter subject therefore, and, investigations gambling ruled To the extent the trial court ony.3 knowledge subsequent his activities Rafferty’s opinions inadmissible were files, shop Cooper’s had come from hearsay they were based on because intelligence reports informants. intelligence files and contained Rafferty’s voir initially trial court confined the decision in v. United reports, he Jenkins testimony to matters dire 300, 304, States, 307 U.S.App.D.C. ob- 113 knowledge through personal gained stead, government objections by the following asserted Apparently, 1979 search 2. (1) opinion Cooper Cooper testi- shop even- to: his barber tually pleaded tery was arrested. directed whether illegal guilty lot- operating an than mony on other could be based information premises. observation; through personal reсeived that (2) testimony was relevant whether Rafferty, his During the voir dire of Detective issue case. material subject of qualifications expert as an gambling issue. In- an numbers became never 82 637, (1962), (as
F.2d
641
calls for a different
Cooper’s
witnesses and
illicit conduct
ruling. See L.C.D. v. District
Columbia would have been
prof
established
T-A.H.D.,
918,
A.2d
Ex Rel.
488
921 n. 8.
testimony),
fered
the trial court’s determi
(D.C.1985);
Edwards v. United
483
testimony
nation that the
lacked relevance
682,
(D.C.1984); Sponaugle
A.2d
685
v.
of the witnesses’ bias was
Pre-Term, Inc.,
366,
(D.C.
411 A.2d
367-68
not an abuse of discretion.
1980). Notwithstanding, we understand
exclusion
the trial court’s exclusion of the detective’s
evidentiary
based on the fundamental
rule
fundamentally
to be more
Equally
of relevance.
fundamental is an
grounded
Specifi
on the lack of relevance.
right
accused’s
“to confront and cross-ex
cally,
question presented
to the trial
amine witnesses and to call witnesses in
Rafferty’s testimony
court was whether
one’s own behalf.” Chambers v. Missis
demonstrating
would be relevant
284,
sippi,
294,
1038,
410 U.S.
93 S.Ct.
identification
certain
1045,
(1973). Moreover,
297
L.Ed.2d
witnesses was motivated
“the Confrontation Clause of the Sixth
particular bias.
requires
Amendment
a defendant to have
may
The defense
establish the bias of a
opportunity
part
some
to show bias
through
witness
both cross-examination
prosecution
of a
witness.” United States
and the introduction of extrinsic evidence.
Abel,
50,
supra,
«3 (a 251) (1982), PD Act, police report that a 18 U.S.C. court noted the Jencks § infor- testimony of and that it contained motions to strike the was available Gibson’s Mont contra- supplied by two were denied. See Cannon which witnesses mation States, 384 A.2d testimony. re- gomery United his trial dicted duty to (D.C.1978) (government has the tool port as a cross-examination could serve covered statements witnesses preserve jury to assess Can- and would allow contends, Act). now by the Jenсks Gibson concluded credibility. court non’s trial, hearing requested at that as was consequences of the Jencks into the cir have been conducted should “insignificant” to Gibson violation were so surrounding the erasure cumstances produce government’s failure asserted, Furthermore, recordings. it is striking warrant the did not recordings was preserve the failure testimony. of Cannon’s deci disregard of this court’s in conscious Jessup testimony, Gibson After Melvin’s police department to take urging sions tape recоrding of that wit- requested the preserve discoverable evi measures erased, thus ness’ 911 call. It too been States, 340 v. United dence. Marshall causing his demand for a Gibson to renew (D.C.1975). Gibson A.2d govern- hearing the reasons for the the witnesses’ argues recording. preserve ment’s failure failure to do been stricken and should have request strike Melvin’s There was also a We dis abuse of discretion. so was an testimony. Unlike the case Cannon’s agree. call, government was able to Sampson Cannon testified After computer printout with a furnish Gibson government, requested the Gibson of the information which contained some cording telephone call to the of Cannon’s during the operator received which the 911 emergency number. Once it was court Melvin’s call. The trial course of that the re- learned from printout as an “ade- ruled that the served cording preserved, had not been of the substance of quate source” testimony be requested that Cannon’s Furthermore, the 911 number. call to stricken, or, alternativе, “specific prejudice” no perceived hearing court conduct a to determine *6 govern- consequence a of the Gibson as tape the circumstances under which produce tape the record- ment’s failure to in inquiry engaged been erased. result, the the court denied ing. As a colloquy with the the trial court involved a testimony. motion to strike prosecutor and defense counsel. inquiry respect to the nature of the With finding that The trial court made a then government indicatеd the conducted once “pursuant to recording the had been erased erased, recordings were we conclude the policy practice existed which acted within its discre- trial court that the of cost police department” and because court was During inquiry its the tion. within the communications considerations tapes prosecutor informed police department. division of poli- departmental to pursuant were erased policy, department’s court stated that the that failure no indications cy. There were for a a lack of consideration which showed recordings the result was preserve the Act, rights under the Jencks defendant’s tapes that were Nor were of faith. bad tapes are changed so that “such had now singled for era- case out pertinent to this period longer substantially for a preserved certainly would sure—a situation case.” tape in the of time than the [instant] hearing to that similar necessitated have state that based The сourt went on to Jackson, 450 v. in States United outlined Cannon, it was credible testimony of Rather, (D.C.1982). the era- 419, 426 A.2d not contain 911 call did that his recordings in the instant case of the sure descriptions of any information about way occurred similarly to the it happened de- the court Consequently, the assailants. States, 692 Bartley v. United in clared, have contained ascertaining that (D.C.1987). By addition, the In material. “little” Jencks 84
cordings
quirements
were lost due to an
depending
administrative
of the
Act
[Jencks]
practice and not because of circumstances
reliability
reporting process
case,
unique
to this
trial court was then
prejudice
and the absence of
to the defend
conducting
in
a more limited in-
justified
ant.”) (footnote omitted),
re
aff'd after
quiry.
mand,
(D.C.1976).
could have light of the alterna- on Can- tion must be made Act. The first review was based ordered, A trial could be but tive. new the second was based non’s and tape, of the loss of the Cannon’s because the court on Melvin’s. On both occasions would be avail- and Furthermore, material. found no Jencks theory that their at that trial able review, the court reit- after the second produced. were not “statements” nothing “indeed there is erated that really be considered tape that could just as a reject an automatic reversal [the] We any specific respect relief. We practical appellate form of Jencks material with and highly unlikely that the so it is do because witness.” run—like the 911 calls— tape of the radio consider the necessary It is also that we anything in the nature would contain it is run and the fact that nature of a radio and the impeaching material. The 911 calls dispatcher to the a transmission from the certainly were
prompted radio run most quali- police units. For the transmission killing request simply report of the and a a “statement,” terms of the fy as a under the respond unit to police for a street Act,6 telephoned person who Jencks investigate. Neither communica- scene and dispatcher, communication to the produced description a likely tion “continuous, police unit would have be detail, in sufficient perpetrator or the event than mere selec- narrative rather all, to statement. if detailed at be Jencks excerpts or from the oral tive notations tape judge’s Moore, supra, 353 A.2d at statements.” impeaching contained no statement Can- (footnote omitted). typi- We believe presumptively correct. non or Melvin seems this run would not fall within cal radio would be there- Reversal conviction Therefore, most, the record- definition.7 of error. speculation fore an unwarranted secondary only have been a maxim, Benjamin Franklin’s borrowed of Jencks material. source George Pru- part from Herbert’s Jacula dentum, apropos is to our view of the Cannon, po- respect to Finally, with government’s loss of the radio run. robbery completed a scene of the lice at the neglect may A breed mischief: for little the crimi- report a short time after PD 251 lost; nail shoe was want of a contains informa- report nal event.8 lost; the horse was want of a shoe provided tion which Cannon a horse the rider was lost. for want of of the crime. garding the circumstances Franklin, descriptions Almanac report B. Poor Richard’s Included we cannot We are concerned that PD available 251 was the assailants. run; however, at the same review the radio purpose of cross- to defense counsel missing tape do not believe the time we for im- examining and as a basis Cannon results in should become the “nail” which recognize that peachment. We of Gibson’s conviction. reversal mate- source of Jencks report separate is a However, record of statе- it is also a rial. trial by the was reviewed twice witness close to made there were ments regard to whether If, 4, supra, as discussed in note the dis- 3500(e) provides: § 6.18 U.S.C. separate are patchers receive the 911 calls "statement,” who as used in subsec- The term transmissions, making the radio (b), (c), (d) those rela- from section in by tions this *8 original statement any called the United link between tion to States, witness then the means— become that much or recital and its (1) by said wit- a written statement made result is that the radio more аttenuated. signed adopted ap- or and or otherwise ness be less like- as material would run’s use Jencks him; proved by ly- electrical, mechanical, (2) stenographic, thereof, recording, transcription or other or record as to from the There is some 8. substantially of an is a verbatim recital prepared PD 251 was after whether a made said witness and oral statement witness Melvin. interviewed making contemporaneously with the corded statement; or.... of such oral perhaps time that the radio run would have reason,
provided another record. For this circumstances
under the of the instant
ease, we believe the PD 251 serves as a source of Cannon’s statements
substitute the time of his 911 call
at and.around subsequent radio transmission.
Regrettable may as it be that the 911 call
and the radio transmission are not available review, foregoing
for our considera- us
tions lead to conclude that the ends of
justice compromised, have been nor has
an innocent man been convicted. we adequate
hold there is not an basis for
reversal.
Accordingly, judgment of conviction
is
Affirmed.
MACK, Judge, concurring in Associate only:
the result record, government’s
On this conduct gross negli-
does not rise to the level of
gence and therefore the trial court’s refus-
al to strike the witness’ is not an
abuse of discretion. HIMMELFARB, Appellant,
Morton HORWITZ, al., Appellees.
Jean H. et No. 86-206. Jr., D.C., Washington, Harry Ryan, L. Appeals. District of Columbia Court appellant for Morton Himmelfarb. James Rider, D.C., Washington, ap- L. entered an Argued Dec. Naiman, al., et pearance Ada Trustees. Decided Dec. 1987.* Curtin, D.C., Washington, Michael F. guardian ad litem. STEADMAN,
Before ROGERS NEBEKER, Judges, and Associate Judge, Retired.** Associate ** * Judge Judge of this typed prior Nebeker was an Associate opinion was released in form argued. His printing. court at the time the case