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02/28/90 MATTER S.H.

February 28, 1990

IN THE MATTER OF: S.H., APPELLANT


Appeal from the Superior Court of the District of Columbia; Hon. Evelyn E. Crawford Queen, Trial Judge

Before Rogers, Chief Judge, and Belson and Steadman, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: Appellant, a juvenile, appeals from the trial court's adjudication of delinquency for felony murder and two related counts. Appellant makes two principal assignments of error. First, the trial court erred in forbidding in cross-examination any inquiry into bias of a key government witness stemming from his friendship with a possible alternative perpetrator of the crime. Second, the trial court erred in applying the "reverse Jencks" rule in juvenile proceedings, notwithstanding the absence of any statute or rule provision so authorizing, and in enforcing this rule by personally examining the file of a defense investigator in a vain search for reverse Jencks material.

As a threshold matter, we have decided on the particular facts of this case not to dismiss this appeal notwithstanding appellant's two escapes and recapture while the appeal has been pending. On the merits, we find that both grounds of error are controlled by prior decisions of this court. The first ground itself requires reversal. Since further proceedings are possible, we also take occasion to review the second ground of error.

I

During the pendency of this appeal, S.H. twice absconded from the custody of the juvenile authorities and was recaptured both times. Upon being advised of the first escape, which occurred after the appeal had been scheduled for argument, *fn1 we removed the case from the calendar and held the appeal in abeyance. After he was apprehended on February 2, 1989, his appeal was recalendared. This court heard oral argument on April 21, 1989. In July 1989, S.H. again absconded. We then ordered briefing on the issue whether the appeal should be dismissed under the principle recited in Molinaro v. New Jersey, 396 U.S. 365, 24 L. Ed. 2d 586, 90 S. Ct. 498 (1970) (per curiam). *fn2 On November 8, 1989, while the parties were still preparing their briefs on this question. S.H. was reapprehended. He remains in juvenile custody. *fn3

"Disposition by dismissal of pending appeals of escaped prisoners is a long-standing and established principle of American law." Estelle v. Dorrough, 420 U.S. 534, 537, 43 L. Ed. 2d 377, 95 S. Ct. 1173 (1975) (per curiam). *fn4 "After the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction," his escape "disentitles the defendant to call upon the resources of the Court for determination of his claims." Molinaro, supra, 396 U.S. at 366. See also, e.g., United States v. Parrish, 281 U.S. App. D.C. 116, , 887 F.2d 1107, 1107 (1989) (per curiam); United States v. Persico, 853 F.2d 134, 136 (2d Cir. 1988); United States v. Puzzanghera, 820 F.2d 25, 26 (1st Cir.), cert. denied, 484 U.S. 900, 98 L. Ed. 2d 195, 108 S. Ct. 237 (1987); Young v. State, 518 So. 2d 822, 824 (Ala. Crim. App. 1987), cert. denied, 488 U.S. 834, 109 S. Ct. 93, 102 L. Ed. 2d 69 (1988); Mason v. State, 440 N.E.2d 457, 458 (Ind. 1982); Commonwealth v. Hurley, 391 Mass. 76, , 461 N.E.2d 754, 755 (1984); State v. Rogers, 90 N.J. 187, , 447 A.2d 537, 538-39 (1982); Commonwealth v. Passaro, 504 Pa. 611, , 476 A.2d 346, 348 (1984). Appellate courts are free to dismiss the appeal of a fugitive even where an appeal lies as of right by statute *fn5 or state constitutional provision. See, e.g., Young, supra, 518 So. 2d at 824 (state statute); Passaro, supra, 504 Pa. at , 476 A.2d at 348 (state constitutional provision). *fn6 Where the appellant is still at large, one rationale for dismissal is clear: As stated many years ago by the Supreme Court in Allen v. Georgia, 166 U.S. 138, 141, 41 L. Ed. 949, 17 S. Ct. 525 (1897):

Otherwise is put in a position of saying to the court: "Sustain my writ and I will surrender myself, and take my chance upon a second trial; deny me a new trial and I will leave the State, or forever remain in hiding." We consider this as practically a declaration of the terms upon which he is willing to surrender, and a contempt of its authority, to which no court is bound to submit.

Furthermore, dismissal prevents the waste of judicial time and effort on a decision which may have no practical effect. State v. Bono, 103 Wis. 2d 654, , 309 N.W.2d 400, 400 (Wis. Ct. App. 1981).

Once an appellant has absconded, an appellate court acts within its discretionary powers in refusing to consider or to reinstate the appeal even if the appellant later returns to the jurisdiction and comes once again within the power of the court. For instance, if a fugitive appellant is apprehended before the appeal is heard, the court may nevertheless dismiss the appeal after his apprehension. See, e.g., Parrish, supra, U.S. App. D.C. at , 887 F.2d at 1107-08; Puzzanghera, supra, 820 F.2d at 26-27. Similarly, if an appellate court dismisses a case because the appellant has absconded, the court has discretionary power to deny appellant's motion to reinstate the appeal. See, e.g., Hurley, supra, 391 Mass. at , 461 N.E.2d at 755-56 & 755 n.2 and cases cited therein. Cf. White v. State, 514 P.2d 814, 816 (Alaska 1973) (court will exercise discretion to reinstate an appeal where there is a showing of good cause). In such cases, different reasons justify the court's refusal to consider the appeal. For one, an appellant who flees "disdains the entire judicial system." Parrish, supra, U.S. App. D.C. at , 887 F.2d at 1108. Under this view, appellate review is inappropriate for one who "flouts the judicial process by escaping." Persico, supra, 853 F.2d at 137. Second, a rule of dismissal in such cases "has the salutary effect of discouraging escape." Id. *fn7 Third, an appellant's escape burdens an appellate court with "additional time-consuming activities." *fn8 Puzzanghera, supra, 820 F.2d at 27. Dismissal is an appropriate method of deterring such interference with the "efficient operation" of the appellate court. Persico, supra, 853 F.2d at 137. Fourth, the delay generated by an appellant's flight may prove prejudicial to the government, both in preparation of the appeal and on retrial should the appeal prove successful. Parrish, supra, U.S. App. D.C. at , 887 F.2d at 1108; Persico, supra, 853 F.2d at 137. *fn9

With respect to the case before us, we are cognizant that we have not heretofore in any published opinion applied the Molinaro sanction, and in particular that we did not do so following S.H.'s first escape. We note also that this is a juvenile proceeding. Furthermore, the total time during which S.H. was out of the control of the juvenile authorities as a result of his two escapes was not of such extended duration *fn10 that the government asserts it will suffer any prejudice in a retrial of the case.

Accordingly, we have determined not to dismiss this appeal on the particular facts of this case. We now turn to the merits.

II

This proceeding arose out of a killing of a young man sitting in the passenger seat of a car at Condon Terrace, a drug-sale area. *fn11 The car was approached by several teen-age boys, and one of them killed the decedent with a single shot. A principal issue at trial was whether the killer was appellant ...


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