Hardy v. United States
316 A.2d 867
D.C.
1974
Check Treatment

*2 GALLAGHER, and Before YEAGLEY HARRIS, Judges. Associate

HARRIS, Judge: Associate carrying a Appellant charged with in violation D.C. pistol license without sup- His motion to 22-3204. Code § denied, following which press gun was the is charged. It jury guilty found him set should be argued the conviction im- judge (1) the motions aside because testimony of to strike the properly refused officer, erroneously (2) and arresting the suppress. affirm. motion to We denied the at about 3:45 was assaulted Ward Rufus vicinity of Flori- morning m. one a. Street, at- His Qand N.W. da Avenue behind, struck upon him from tacker came gun- at head, forced him and him on assailant nearby yard. into point money and left. took Ward’s his bleeding profusely from Ward call the someone to asked He head wound. nearby station service police, and went to station, the service up. At clean himself individ- by the same again he was accosted said, do “I’ll attacker His ual. erstwhile you”, danced with and karate un- “a while” good for little around Ward sta- service front lights der away. assailant walked Finally tion. arrived at police officers then Two had They observed that Ward station. appeared eye his and fresh cut over police told the have been assaulted. his assail- said that about the incident. He Flori- gone east on and had ant was armed car police got in the da Avenue. They east drove officers. Street, Capitol Avenue Florida to North Appellant’s argument premised is They had second they turned south. where pointed Act, so-called U.S.C. ceeded about block when Ward § Jencks is; ques- resolving Before said, that’s “There he appellant explain appropriate it presented, tion guy.” *3 govern- a feature rather unusual of the the alighted from Phil Clarke Officer Ward, complaining ment’s evidence. the Ap- appellant. approached car and scout witness, absolutely was certain that the man pocket, pellant toward moved his hand him, the man who danced who assaulted gun whereupon drew his Clarke Officer karate-style, and around him the man Hardy right it there.” to “hold and told pointed he to whom out Officer Clarke pis- the frisked him and found The officer However, were one and the same. he later pocket. his tol in coat as that identify appellant was unable to argues that the search violated Appellant government dropped man. The an assault rights. He con- his Fourth Amendment solely charge, prosecuted appellant and on approached and when he was tends that gun charge. testimony the estab- Ward’s probable cause frisked, neither there was arrest, probable lished cause for the but it the did Clarke have for arrest nor Officer positive was Clarke’s identification Officer suspicions for a required articulable appellant the of as man on whom he found 1, Ohio, Terry 392 v. U.S. tective frisk. gun the that to the led conviction. 1868, (1968). 20 889 L.Ed.2d 88 S.Ct. Clarke was cross-examined dur- Officer from appeal an considering suppress. to ing hearing the on the motion conviction, obliged are to we judgment of It then was that had de- learned light favor in most the evidence the view station, his scribed assailant at the service Curley v. E.g., government. able to the jotted that and that Clarke had down de- 389, States, 160 U.S.App.D.C. United 81 scription. explored court the availa- The 837, denied, 229, 67 S. 331 F.2d cert. U.S. note, bility it of the officer’s but could not 1511, The facts (1947). 1850 91 L.Ed. Ct. be found.2 The declined strike court to Clarke, including his ob to Officer known Clarke; appellant the of testimony Officer sponta the and Ward’s servation of victim argues ruling that was erroneous. appellant, positive identification of neous to probable general purpose cause gave him The of the unquestionably aid for Act is to the search truth arrest. Brown v. United Jencks Pendergrast prior v. providing Unit a defendant with access to (1971); 27, government 416 20, witnesses States, U.S.App.D.C. statements of for 135 ed 926, denied, 776, 783, impeachment purposes. 89 possible 395 U.S. Unit cert. See F.2d 89, Perry, U.S.App.D.C. The 1782, 243 ed 153 (1969). 23 L.Ed.2d States v. S.Ct. 1057, 94, pistol (1972). val 1062 If the the was 471 F.2d search which uncovered state E.g., government produce United elects not to the arrest.1 id as incident to Robinson, provides States v. 218, possession, ment in its the statute 414 U.S. 94 S.Ct. ; testimony. 467, v. Cal for elimination of the witness’ (1973) Chimel L.Ed.2d 427 38 Clearly, 752, 2034, 3500(d) (1970). 23 18 how ifornia, U.S.C. 89 S.Ct. § U.S. ever, imposes its on the the Act sanction (1969). L.Ed.2d 685 appellant’s clothing. Terry Ohio, to assume that outer Even if we were Officer v. supra. probable gun to The not cause arrest was discovered the course did have Clarke him, approached appellant the sei of such a frisk. when he pistol have would zure nonetheless request production did not Defense counsel Hardy identified been lawful. When suppress of the note until after his motion to duty assailant, his the officer had as denied, had time been some after Officer appellant, n approaching investigate. While Although trial Clarke had testified. in his him to reach the officer saw start expressed court the timeliness doubt pocket. he been told that Since had request, inquiry made into full armed, jus express Clarke attacker was Officer whereabouts the note. We opinion question. conducting protective no frisk of on the tified timeliness impose a determining whether gave ant in testimony witness of the who upon government for the loss statement, re sanction than the one who rather on also Banks v. a witness’ statement. See argument Officer ceived it. The States, D.C.App., 305 A.2d 256 strick United testimony have been should Clarke’s us, the officer In the case before misdirected. en and is thus was appellant was that his arrest of challenge testified permitted appellant to Act Jencks only on-the-scene identifi- Savage based the victim’s testimony of Ward. Cf. description cation, prior not States, D.C.App., 313 A.2d United given. identifica- Bundy, he had been That which 153 U.S. (1974); United States independ- an supplied 1268 tion officer with F.2d App.D.C. arrest, appellant’s and effec- opinion). ent basis for *4 (1972) (concurring prejudice tively any possible from reduced whether That leads us to consider nullity. Savage loss notes to a of the testimony constituted receipt of Ward’s States, supra; Banks United v. United ina plain light in error of Officer Clarke’s States, supra. which he produce paper bility to supra, Bryant, United States v. In description of his original noted Ward’s direct law enforce- sought Court to Circuit state a discoverable assailant.3 Where in the District ment instrumentalities destroyed and hence or ment has been lost “rigor- promulgate and follow Columbia to possession, a government’s is not in the designed systematic procedures to ous weigh certain factors

trial court must gathered preserve evidence all discoverable to exercising in discretion whether its investigation.” in of a criminal the course testimony. E.g., United strike witness’ 142, Id., at U.S.App.D.C. at 439 F.2d 142 348, 89 S. Augenblick, 393 U.S. States v. apparent re- (footnote omitted). In 652 528, (1969); United Ct. 21 L.Ed.2d 537 sponse Chief of the opinion, that to Bundy, supra; States v. United States v. Metropolitan Department issued Police 132, U.S.App.D.C. 439 F.2d Bryant, 142 601, 2, which be- No. Order Series General supra (153 Perry, in As (1971). stated 26, It directed May came effective 1972. 1067): 471 F.2d at U.S.App.D.C. preserve all police to officers thenceforth potentially material.4 discoverable instant or subse- [Ujnless either justice will be quent cases the interest of was in effect Order That General Government, by penalizing the furthered The note which when was attacked. striking the testimo- penalty then [the description of Ward’s Officer Clarke made is be invoked au- ny not to of a witness] potentially dis of his assailant at least adversary game. tomatically as in an coverable, preserve to and Clarke’s failure testimony, there should to exclude order However, the note the order. that violated or showing negligence of either be negli conduct did not constitute officer’s accompanied by purposeful destruction any imposition of gence necessitating the judgment. or either bad motive bad level, appellate particularly at the sanction by description Perry given trial also directed the court since the pur- any police for possible prejudice by to the defend- utilized consider never Any by a member of the 3. It 3. notes taken unknown whether officer’s notes department substantially constituting ver- which are reached the level of “state- properly made an oral statement ment” under batim recital of by which was discoverable not, they prospective or defendant which the Jencks If witness Act. did their contemporaneously properly with the duction be See are recorded could not ordered. Hines, (this U.S.App.D.C. making of statement includes the oral States v. United description 249, 264, rough an officer’s notes of the 455 F.2d perpetrator given of the crime prior Among of a the arrest victim or witness definitions General Order’s “potentially suspect.); is the fol- discoverable material” lowing: pose at all. No effort was made below stricken, testimony and no

have Ward’s

proper challenging basis existed for Offi- testimony.

cer Clarke’s are satisfied We any possible error was harmless. accordingly is

judgment of the trial court

affirmed.

GALLAGHER, Judge (con- Associate

curring) : where, is still another instance

This case, opinion in the this

noted court’s compliance apparently

there has not been Metropolitan Police General Order See, Savage e.g., No.

Series

United

(1974); Banks v. United States,

As stated in Banks v. United su-

pra (Gallagher, J., at 259 concurring) the

government gave po- us understand that

tentially discoverable material would be

preserved in view of the terms of the Gen- year

eral That than Order. was more

ago. government I assume the would

taking steps general compli- to effectuate

ance.

LIBERTY MUTUAL INSURANCE COM- and Won corporation,

PANY, T. Moon, Appellants, COLUMBIA, municipal

DISTRICT OF

corporation, Appellee.

No. 7200. Appeals.

District of Columbia Court

Argued Sept. 26, 1973. 20,

Decided March