Lead Opinion
Retired:
Fоllowing a jury trial, appellant Roy Gibson was convicted of murder in the first degree while armed (felony murder), D.C. Code §§ 22-2401 (1981), -3202 (1987 Supp.); two counts of armed robbery, id. §§ 22-2901 (1981), -3202 (1987 Supp.); and assault with intent to commit robbery while armed, id. §§ 22-501 (1981), -3202 (1987 Supp.). On appeal,
The government’s evidence at trial established that on the afternoon of February 17, 1983, several armed men, including Nathaniel Martin, entered a barber shop at 1812 7th Street, Northwest, Washington, D.C. Appellant Gibson and shop owner Spurgeon Cooper, as well as a number of other persons, were already present in the shop when the armed men entered. Martin, who was wielding a gun, announced the fact of a “stickup” and ordered everyone to the rear of the shop. At the same time, Gibson displayed a knife and proceeded to take $220 from Jessup Melvin — one of the persons in the shop. As Martin directed the other people to hand over their money, shop owner Cooper stood up and moved away from where he had been ordered to remain seated. Martin shot Cooper after another of the robbers yelled for him to do so. One of the government’s witnesses, Jessup Melvin, identified Gibson as the robber who exhorted Martin to shoot Cooper. After Martin fired the shot, all of the assailants fled the store.
Two of the persons who had been in the shop during the robbery called the 911 emergency number immediately after the incident. Jessup Melvin was the first to telephone the emergency number; he spoke to a police official for three to four minutes regarding the robbery and shooting. Shortly after Melvin’s call, Sampson Cannon also telephoned the 911 number. He spoke to a dispatcher and related what had happened in the barber shop. After receiving the 911 calls, a dispatcher communicatеd, in what is known as a “radio run,” to police units in the field providing information based upon that received in the telephone calls.
Gibson was identified by three of the individuals who were in Cooper’s shop during the robbery and shooting. Gail Johnson identified Gibson from a photograph array that was shown to her by the police during their investigation on the evening of the crime. Johnson also testified that Gibson spoke to her two days after the robbery regarding his participation in the incident. Jessup Melvin failed to identify Gibson from the policе photograph array; however, at a lineup that Melvin attended on May 4, 1983, he did point out Gibson as one of the robbers. On cross-examination, Melvin denied that an illegal numbers operation was conducted from Cooper’s shop. Sampson Cannon did not view the photograph array, but at the May 4th lineup he made an identification of Gibson after hearing each of the individuals in the lineup speak a few words. Cannon was cross-examined about his 1979 arrest for possession of illegal numbers slips. He admitted to playing the numbers but denied that Cooper’s shop was the scene of illegal gambling.
Gibson’s defense was based on the premise that Cooper’s barber shop was a front for the operation of a numbers game, and on the fact that Gibson informed the police of the operation when he was interviewed by them during the course of their investigation a few weeks after the robbery. Gibson’s counsel, in an opening statement to the jury, theorized that the persons who were in the shop when the robbers entered were involved in the illegal numbers game. Furthermore, defense counsel argued that those people identified Gibson as one of the robbers in order to discredit the information he gave to police about the numbers operation, thereby reducing the chance that they would be charged with illegal gambling. Although Gibson was able to outline his defense in his opening statement and to cross-examine the government witnesses, the trial court did not allow Gibson to present expert testimony from a police detective who had been invоlved in a 1979 investigation of the barber shop for violations of the gambling laws.
Gibson contends that the trial court abused its discretion in excluding the expert testimony that was offered to show that Cooper’s barber shop had in the past been the scene of a numbers operation. The exclusion of the testimony was, Gibson claims, an erroneous evidentiary ruling as well as a violation of his sixth amendment right to present a defense and to confront the witnesses against him. We disagree.
The expert testimony that Gibson sought to have admitted was that of Detective Robert Rafferty. Drawing on his extensive experience with the Metropolitan Police Department, including over three years on the gambling and liquor squad, Rafferty, as a qualified expert in numbers gambling, would have testified as to how an illegal numbers operation is conducted. In addition, Rafferty would have given his opinion that decedent Cooper’s barber shop had in the past been the site of a numbers operation.
During a voir dire of the detective, testimony was elicited about Rafferty’s knowledge оf the gambling activities which specifically took place at Cooper’s shop. When Gibson’s counsel examined Rafferty with respect to the extent of that knowledge, the government objected to Rafferty relying on anything more than his personal observations regarding the gambling activities. With respect to those observations, Rafferty in 1979 had assisted a Detective McClanahan in the execution of a search warrant at Cooper’s and at that time concluded that Cooper was a numbers writer.
In determining whether the trial court abused its discretion in disallowing thе expert testimony, we must first review the reasons for which the testimony was sought. Counsel for Gibson was attempting to show through Rafferty’s testimony that Cooper was conducting a numbers game in his barber shop. Consequently, the defense intended to establish that the people frequenting the shop were participating in the illegal gambling and thus had a motive to be both “less than honest in their testimony ... and ... to implicate Mr. Gibson, who had the knowledge of the operation [at the shop].” In essence, the testimony pertained to the bias of thе government witnesses who identified Gibson as one of the robbers.
We note at the outset that the trial court’s action should be viewed as raising an issue of relevancy, rather than an issue of subject matter proper for expert testimony.
The defense may establish the bias of a witness through both cross-examination and the introduction of extrinsic evidence. In re C.B.N.,
The exclusion of the testimony was based on the fundamental evidentiary rule of relevance. Equally fundamental is an accused’s right “to confront and cross-examine witnesses and to call witnesses in one’s own behalf.” Chambers v. Mississippi,
II
In his second issue on appeal, Gibson claims that the trial court abused its discretion by not imposing sanctions on the government for the failure to preserve the tape recordings of Jessup Melvin’s and Sampson Cannon’s telephone calls to the 911 emergency number. Although the trial judge determined that thе police department had erased the two tape recordings, in violation of the government’s duty under
After Sampson Cannon testified for the government, Gibson requested the tape recording of Cannon’s telephone call to the 911 emergency number. Once it was learned from the government that the recording had not been preserved, Gibson requested that Cannоn’s testimony be stricken, or, in the alternative, that the court conduct a hearing to determine the circumstances under which the tape had been erased. The inquiry engaged in by the trial court involved a colloquy with the prosecutor and defense counsel.
The trial court then made a finding that the recording had been erased “pursuant to policy and practice which existed in the police department” and because of cost considerations within the communications division of the police deрartment. The court stated that the department’s policy, which showed a lack of consideration for a defendant’s rights under the Jencks Act, had now changed so that “such tapes are preserved for a substantially longer period of time than the tape in the [instant] case.” The court went on to state that based on the testimony of Cannon, it was credible that his 911 telephone call did not contain any information about the descriptions of the assailants. Consequently, the court declared, the recording wоuld have contained “little” Jencks material. In addition, the court noted that a police report (a PD 251) was available and that it contained information supplied by Cannon which contradicted his trial testimony. This police report could serve as a cross-examination tool and would allow the jury to assess Cannon’s credibility. The court concluded by finding that consequences of the Jencks violation were so “insignificant” to Gibson that the government’s failure to produce the recording did not warrant the striking of Cannon’s testimony.
After Jessup Melvin’s testimony, Gibson requested the tape recording of that witness’ 911 call. It too had been erased, thus causing Gibson to renew his demand for a hearing on the reasons for the government’s failure to preserve the recording. There was also a request to strike Melvin’s testimony. Unlike in the case of Cannon’s telephone call, the government was able to furnish Gibson with a computer printout which contained some of the information which the 911 operator received during the course of Melvin’s call. Thе trial court ruled that the printout served as an “adequate source” of the substance of Melvin’s call to the 911 number. Furthermore, the court perceived no “specific prejudice” to Gibson as a consequence of the government’s failure to produce the tape recording. As a result, the court denied the motion to strike Melvin’s testimony.
With respect to the nature of the inquiry conducted once the government indicated the recordings were erased, we conclude that the trial court actеd within its discretion. During its inquiry the court was informed by the prosecutor that the tapes were erased pursuant to departmental policy. There were no indications that failure to preserve the recordings was the result of bad faith. Nor were the tapes that were pertinent to this case singled out for erasure — a situation which would certainly have necessitated a hearing similar to that outlined in United States v. Jackson,
The next question is whether the trial court, as Gibson contends, abused its discretion by refusing to impose sanctions on the government for its failure to preserve the recordings. We have recently reiterated that “[a] finding of improper destruction ... does not require that sanctions automatically be imposed.” Bartley, supra,
As previously stated, the trial court found that the recordings were erased in accordance with a police department policy which called for reuse of the tapes. As in Bartley, there was “nothing in the record to suggest that the erasure of the tape was the result of either bad faith or a desire to conceal or destroy evidence.”
We are convinced that the evidence of guilt adduced at trial was such that neither the failure of the government to produce the tape recordings nor the court’s refusal to impose Jencks sanctions resulted in a miscarriage of justice. We therefore conclude that the trial court did not abuse its discretion in denying Gibson’s motions to strike the testimony of both Cannon and Melvin.
Ill
The final contention on appeal involves thе radio transmissions (“radio run”) to the police field units from the dispatchers who received Sampson Cannon’s and Jessup Melvin’s 911 emergency calls.
Contrary to the representations made by the government at trial that the tape would remain in its files and thus be available for appellate review, we are advised that the recording no longer exists. This carelessness forces this court to make an evaluation of the likely nature of the words on the tape and the practical effect the tape
We reject an automatic reversal as a just and practical form of appellate relief. We do so because it is highly unlikely that the tape of the radio run — like the 911 calls— would contain anything in the nature of impeaching material. The 911 calls and the prompted radio run most certainly were simply a report of the killing and a request for a street police unit to respond tо the scene and investigate. Neither communication likely produced a description of the perpetrator or the event in sufficient detail, if detailed at all, to be a Jencks statement. Thus, the trial judge’s finding that the tape contained no impeaching statement of Cannon or Melvin seems presumptively correct. Reversal of the conviction would be therefore an unwarranted speculation of error. Benjamin Franklin’s maxim, borrowed in part from George Herbert’s Jacula Pru-dentum, is apropos to our view of the government’s loss of the radio run.
A little neglect may breed mischief: for want of a nail the shoe was lost; for want of a shoe the horse was lost; and for want of a horse the rider was lost.
B. Franklin, Poor Richard’s Almanac (1757). We are concerned that we cannot review the radio run; however, at the same time we do not believe the missing tape should become the “nail” which results in the reversal of Gibson’s conviction.
The tape was reviewed twice by the trial court with regard to whether there were producible statements under the Jencks Act. The first review was based on Cannon’s testimony and the second was based on Melvin’s. On both occasions the court found no Jencks material. Furthermore, after the second review, the court reiterated that “indeed there is nothing on [the] tape that could really be considered Jencks material with respect to any specific witness.”
It is also necessary that we consider the nature of a radio run and the fact that it is a transmission from the dispatcher to the police units. For the transmission to qualify as a “statement,” under the terms of the Jencks Act,
Finally, with respect to Cannon, the police at the scene of the robbery completed a PD 251 report a short time after the criminal event.
Regrettable as it may be that the 911 call and the radio transmission are not available for our review, the foregoing considerations lead us to conclude that the ends of justice have not been compromised, nor has an innocent man been convicted. Thus, we hold there is not an adequate basis for reversal.
Accordingly, the judgment of conviction is
Affirmed.
Notes
. Gibson’s appeal was originally consolidated with that of his codefendant Nathaniel Martin. Because of the nature of our disposition of the two appeals, an order has now been entered vacating the earlier consolidation order.
. Apparently, following the 1979 search of the barber shop Cooper was arrested. Cooper eventually plеaded guilty to operating an illegal lottery on the premises.
. During the voir dire of Detective Rafferty, his qualifications as an expert on the subject of numbers gambling never became an issue. Instead, the objections asserted by the government were directed to: (1) whether his opinion testimony could be based on information other than that received through personal observation; and (2) whether the testimony was relevant to a material issue in the case.
. It is not clear whether the dispatcher who receives the 911 calls is thе same one who then radios the information to police units in the field.
. 18 U.S.C. § 3500 (1982).
.18 U.S.C. § 3500(e) provides:
The term "statement,” as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means—
(1) a written statement made by said witness and signed or otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or....
. If, as discussed in note 4, supra, the dispatchers who receive the 911 calls are separate from those making the radio transmissions, then the link between the original statement and its recording or recital become that much more attenuated. The result is that the radio run’s use as Jencks material would be less likely-
. There is some question from the record as to whether a PD 251 was prepared after the police interviewed witness Melvin.
Concurrence Opinion
concurring in the result only:
On this record, the government’s conduct does not rise to the level of gross negligence and therefore the trial court’s refusal to strike the witness’ testimony is not an abuse of discretion.