*1 considered in the determination of whether
the defendant knowing made a and intelli
gent waiver of rights and that voluntary.
waiver was See, g., e. T.,
matter of
D.C.App.,
F.
313 A .2d 876
Accordingly, the appealed order
must be reversed and remanded for further
proceedings surrounding so that the facts
appellant’s inculpatory might be statements
determined and the of waiver
resolved.13
So ordered.
George J. MATTHEWS, Appellant,
UNITED STATES, Appellee.
No. 7426. Appeals.
District of Columbia Court of
Argued Feb. 1974. July 30,
Decided C., ap- Freund, Washington, D.
Jeffrey pointed by appellant. Turkus, Atty., with Asst. Albert H. U. S. Titus, Jr., Atty. at whom Harold H. U. S. filed, Terry A. the time the brief was John Banoun, Attys., Raymond Asst. U. S. brief, appellee. were on the ground upon trial court based its which the is confined to the narrow Our review here grant suppress. of the motion to *2 examining judge, either REILLY, and The trial without Judge, Bеfore Chief testimony, requiring further PAIR, the notes or Judges. Associate FICKLING and request. denied the testimony Miss Ben- After the direct FICKLING, Judge: Associate again moved for counsel jamin, defense pros- by the any taken production of notes rob- armed Appellant was convicted of Miss during his interviews ecutor robbery bery robbery. armed The request, the response to Benjamin. In this 1, 1972, Miles’ place took at the on June prosecutor said: Flor- Shop at & Long 7th Street Sandwich Avenue, robbery ida occurred The N.W. took, Honor, all of notes Your July later almost two months on I never them were verbatim. none of shop. at the same sandwich take verbatim notes. Similarly, the trial without conduct- presenting At trial the government, request. any case-in-chief, ing inquiry, denied the em- three called witnesses Shop ployees this Long of Miles’ Sandwich Act, re- The 18 U.S.C. § Jencks Rouse, Shirley Car- —Doris quires “[ajfter by the a witness called lyn Benjamin. These witnesses identified exam- United States testified on direct appellant em- as the robber. After each shall, ination, the court motion ployee testified, defense counsel moved for defendant, order the United States pursuant statements various duce hereinaftеr de- (as statement principally Appellant Act.1 possession in the fined) of the witness by trial court erred fail- contends to the sub- which relates United States ing adequate inquiry conduct an has tes- ject matter as to which the witness denying requests his (1) statute de- Paragraph (e) tified.” in- during notes taken following: fines include a statement to with Mrs. Abraham and terviews Benjamin by 251 forms and made said (1) a written statement previous rob- relating adopted runs to four or otherwise witness and him; Miles’ approved by beries another or Shop appellant allegedly in which was mechanical, elec- stenographic, a for further agree and remand volved. We trical, transcrip- recording, other proceedings. substantially thereof, which is a ver- tion made of an oral statement batim recital consider first re- defense counsel’s agent by said witness to Gov- quest by the of notes taken contemрoraneously ernment and recorded during trial prosecutor interviews with making statement. such oral with the Mrs. Benjamin. Mrs. Abraham and Miss inter- Abraham testified that she had been by prosecutor and viewed twice the trial argues the trial government The De- on each he notes. occasion took inquiry dе- a sufficient court conducted production of fense counsel moved for prosecutor’s notes termine whether response coun-
these notes.
defense
support
To
verbatim.
request,
sel’s
said :
contention,
relies
government
Augenblick, 393 U.S.
United States
Honor,
I never take
Your
notes
L.Ed.2d
I do
...
are verbatim nature.
review-
was
that case the
substantially verbatim
anything
by
Claims
not have
Court of
ing a
decision
collaterally at-
court-martial
this witness.
§ 3600
18 U.S.C.
ground
tacked on the
alleged
that the
vio-
mination with the
acting as arbi
lations of the
Act rose
ato
consti-
Bary
ter.
v. United
ment falls within counsеl’s next defense consider statute. a controverted When PD 251 forms arises, request deter for certain . it is for judicial 9H previous ns.2 At four The ru a conference before the robberies. trial, prosecutor advised attempting start of the without to determine whether producible defense сounsel and the trial court these were documents identify appellant Act, request. denied the Mrs. Rouse able day robbery on the she first because notes, As previous seen him four occasions at by failing the trial court erred to conduct Shop. another Miles’ On appropriate inquiry wheth to determine occasions, appellant allegedly each of these er 251 forms and radio runs relat prosecutor fur robbery. committed a The ing previous. to the four robberies however, explained, Rouse ther that Mrs. producible under Act. See appel recоgnized would not state she U.S.App.D.C. Duncan v. United previous lant because these robberies. 379 F.2d fact Rather, testify she would that she was able may these documents been 1, 1972, recognize appellant be *4 June subpoena govern way in no undercuts the previous cause she seen him occa Act. obligation ment’s under the Long sions at Miles’ another the Duncan the court remanded case for Shop. pointed In response defense counsel proceedings in order for the trial proposed testimony out this would court to determine whether a similar PD part trigger obligation on the an the producible 251 form was government provide PD with the to him Act. these relating 251 forms and runs to radio government’s position robberies. was remand- that this case must be think
that these documents were
to sub
as
ed to the
court for a determination
trial
therefore,
poena;
obligatiоn
it had no
to
following
to whether
the
documents —
supply them under the
Act.
during his in-
the
notes taken
Mrs.
terviews with
trial,
During
day
the second
Mrs.
and
Benjamin and
the PD
forms
by
gov-
was
Rouse
called as a witness
the
previous
four
relating
runs
to
radio
ernment.
as
testified
follows:
She
producible statements within
robberies —are
yоu
Now,
tell us
Q.
can
[Prosecutor]
The trial
meaning of
Act.3
the Jencks
anything
there
unusual
whether
was
procedures
for
court should follow
Matthews,
person whom
about Mr.
by
as
above
stated
such a determination
you
just
identified
now?
Williams,
supra.
If the
court
docu-
of these
court determines
Well,
exactly,
A.
[Mrs. Rouse]
by produced
ments should have been
him
I had
before.
because
seen
prej-
so was
government and failure
do
to
him
?
Q.
had seen
You
prior
error,
it
vacate
should
udicial
appellant a new trial.
grant
judgment and
A. Yes.
supple-
should
court
“Otherwise,
before?
you seen him
Q. Where had
findings of fact
new
ment the record with
judgment so
new final
enter a
and
work
used to
At the Miles
I
A.
enlarged
review on
right
appellate
to
at.
preserved.” Saun-
will have been
record
Columbia, D.C.App.,
testimony,
completed her
she
direct
After
District
ders v.
See,
Campbell v.
the PD 251
requested
g.,
defеnse counsel
e.
A.2d
relating
and the
runs
365 U.S.
forms
United
descrip-
unnecessary
ducible,
us
consider
initial
to
contain the
These documents
duty
police by
given
un-
robber
violated
tion of the
to
eyewitness.
or
Brady Maryland,
other
victim
v.
der
(1963),
produce all
remanding
case
de-
we are
Since
exculpatory
defense.
evidence
are
termine whether
these documents
421,
Remanded with instructions.
It
important
the statement
fairly
could
fully
be deemed to rеflect
REILLY,
Judge
Chief
(concurring in
and without distortion what had been
part
dissenting
part)
:
said to the
agent. Distor-
portion
concur in that
order re-
product
tion
selectivity
can be a
manding the case to the trial court
de-
well as the conscious
inadvertent
termine whether the PD 251 forms filled
opinions
fusion
recorder’s
or im-
out in
previous
connection with the
rob-
pressions.
It is clear from the continous
beries
“adopted” by
were either
the witness
congressional emphasis
“substantially
Rouse, or amounted
“substantially
to a
ver-
recital,”
“continuous,
verbatim
nar-
batim recital of
oral stаtement
[any]
made
by
rative statements made
the witness
occasions,
said witness” on those
al-
verbatim,
nearly
recorded
so
* *
though the
upon
Duncan
relied
B,
Appendix
post
see
opinion1
really
is not
controlling.
page
legislation
was de-
Duncan,
form,
where the
report
danger
to eliminate the
distor-
police
which
prepare
officers
and file as a
misrepresentation
tion and
inherent in a
matter of
report-
routine when crimes are
report
portions,
selects
al-
merely
ed,
actually
signed by
policeman
beit accurately,
oral re-
lеngthy
*5
stand,
clearly
upon
it was
incumbent
Quoting
cital.
context
is
of
out of
one
the trial
production
court
its
for
to order
frequent
the most
and
modes
powerful
inspection
in camera
under
subsection
misquotation.
think it
of
consistent
(e)(1) of the
Act. Here the PD
legislative history,
with this
and with
Jencks
251’s
signed by
could not have been
generally restrictive terms of the statuto-
Nevertheless,
witness.
suppose
if her
ry provision,
require
that summaries
one,
statement was a short
officer
of an
statement which evidence sub-
oral
making
may
out the PD 251
have tran-
material,
stantial
of
or which
selection
scribed her exact words.
prepared
were
the interview with-
after
notes,
complete
the aid
and hence
out
of
difficulty
I have more
in understanding
agent,
rest
are not
on the
of the
memory
how the
runs could
within the
fall
Neither,
course,
produced.
are
to be
of
simply
statute.
brief
Such broаdcasts are
agent’s
statements which contain the
complaining
summaries of what a
witness
terpretations
impressions.
police probably
told the
more than
no
—
(Italics supplied;
omitted.)
footnotes
description
a short
fugitive
of the
Supreme
nature of the crime. The
Court
any
bеing
As
is
remanded in
the case
excerpts
has held that selected
do not fall
inspection
in
of the
event for
camera
purview
within the
lead
the act.
In the
251’s,
objection
judge
I have
to the
no
ing case, Palermo
360
U.
present his
requiring
also
343,
1217,
would reserved
ermo v. ex- L.Ed.2d 1287. Since left
amination the record we are precise
doubt as to the nature of
“notes”, say we cannot that the command disobeyed when Act was they produced. were not to be ordered
Moreover, we in Palermo v. Unit said States, supra, 353, 79
ed S.
Ct. 1217 at that the administration Act must be entrusted experience” “good sense and “appropriately judges courts.” appellate
limited review of came
cannot conclude that when it Mendelson, law of
“rough notes” of their abused
ficer and Board of Review need not they
discretion S.App.D.C.206, Williams United 117 U. notes an interview with a been conducted is sum- agent witness. The testified marized as follows in Williams
Notes
notes ruling as within well treat the trial court’s were until he verbatim” “not scope discretion. personally Yet Au- examined them. genblick a unanimous court held presiding judicial officer did not err _ gov- failing to call for the re- agent’s “rough ernment notes” and versed a of Claims decision purported contrary. I find the distinction Augenblick the case us and between FELDT, Appellant, M. Sarah particularly unconvincing, as Mr. Justice opinion, Douglas, in his observed: CORPORATION, Appellee. MARRIOTT It difficult tell from this record No. 7145. “notes”, precise nature of Mendelson’s Hodges’ Appeals. they part whether recorded District of Columbia Court of merely they interview Argued Dec. names, places, and giving memorandum July 24, Decided Certainly they were not a state- hours. interview; covering ment the entire