Appeal from the Superior Court of the District of Columbia; (Hon. Donald S. Smith, Motions Judge.); (Hon. Ricardo M. Urbina, Trial Judge)
Before Terry, Steadman, and Schwelb, Associate Judges.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge: Appellant, convicted of armed robbery *fn1 after a jury trial, contends on appeal that the trial court abused its discretion in refusing to impose sanctions for the government's failure to preserve recordings of calls made to the "911" emergency telephone number which contained a description of the robber, and in admitting testimony about his supposed poverty. We reject both contentions and affirm the conviction.
Gregory Collier worked the evening shift as an attendant at Daniel's Chevron service station. At approximately 10:30 p.m. on October 3, 1986, Collier was counting money in the station office, intending to put some of it in the safe, when he noticed a man walking across the station plaza in his direction. The man entered the office and asked, "What's happening?" Mr. Collier, thinking that "maybe he had come in there to talk to somebody about a car," did not reply but continued counting. Suddenly the man stuck a gun in Collier's side and demanded money. Mr. Collier gave the robber all the money he was counting *fn2 and lay down on the floor as directed. The robber then walked out of the office, and Collier watched him as he headed across the plaza and disappeared behind a tow truck.
Mr. Collier immediately called 911 and gave a description of the robber over the phone. When several police officers came to the station a few minutes later, Collier again gave them a description of the robber and his gun. He told the officers that he had immediately recognized the robber as a man who had brought a black Audi into the station for repairs a couple of times and, some time earlier, had brought in a Cadillac as well. Collier also told the police that the Audi remained on the lot for over a month, and that one night -- about a week before the robbery -- the robber had asked him for the keys to the Audi and had gone to sit in it with a friend, listening to the radio, until after the station closed at midnight. Mr. Collier had also seen the robber frequently ("three or four times a week") before the robbery because "he used to hang out across the street at the shopping center."
Over the next few months, Mr. Collier saw the robber near the station on three occasions. The first two times he called 911 and gave a description of the man he had seen. Nothing happened after the first call. After the second call, however, the police picked up a suspect and brought him to the station for Collier to identify, but Collier told them it was the wrong man. Finally, on January 9, 1987, Collier saw the robber again. He immediately "went across the street and told [a police officer] that he was the guy that robbed the gas station." That officer broadcast a description over the radio, and about five minutes later appellant was arrested and brought back to the station, where Mr. Collier positively identified him.
On July 24, 1987, nine and a half months after the robbery, defense counsel sent a letter to the prosecutor requesting inter alia copies of "any 911 calls and radio runs in this case." At a later hearing in November, it was established that the police department had failed to preserve a tape of the 911 call which Mr. Collier had made on the night of the robbery, in which he gave a description of the robber, and that the tapes of the two subsequent 911 calls could not be located. The prosecutor *fn3 told the court that "the whole tape" containing the first call had been erased in accordance with Metropolitan Police Department administrative procedures, under which 911 tapes were destroyed after one year. Defense counsel then filed a motion to impose sanctions under the Jencks Act, *fn4 asking the court to exclude the testimony of Mr. Collier because of the government's failure to preserve the tapes of the 911 calls.
The motions Judge denied the motion for sanctions, finding (1) that there were three other documents from the night of the robbery which contained "descriptive information"; *fn5 (2) that Mr. Collier knew the robber by sight because he had brought his car to the station well in advance of the robbery to have it repaired, and that appellant had admitted going to the station before the date of the robbery; and (3) that there was no showing of any "intentional or willful or malicious destruction of evidence to thwart a defense." The Judge found no bad faith on the part of the government, although the loss or destruction of the tapes "may be said to be negligent . . . ." The Judge also denied defense counsel's alternative request for a missing evidence instruction "because of the peculiar facts of this case."
By failing to produce Mr. Collier's 911 call from the night of the robbery and two subsequent 911 calls of sightings of the robber, the government violated the Jencks Act. That Act imposes an affirmative duty upon the government to preserve "statements" of its witnesses *fn6 and, upon motion of the defendant, to disclose and produce those statements. "This duty extends not only to the prosecutor, but to the government as a whole, including its investigative agencies." Montgomery v. United States, 384 A.2d 655, 662 (D.C. 1979) (citations omitted). There can be no doubt that the government, as the motions Judge found, was negligent.
We are deeply disturbed by the indifference shown by the government in its failure to preserve discoverable evidence. It is especially troubling that defense counsel made a specific request for the 911 calls in July, well in advance of the scheduled October destruction date. Counsel's letter to the initially assigned prosecutor, which is in the record, could not have been more explicit. It appears, however, that the prosecutor did absolutely nothing to comply with his duty to preserve the tapes and make sure that they were not destroyed. This is unacceptable. *fn7 A prosecutor is not free to ignore a discovery request for such tapes when he knows (or should know) that the tapes will soon be destroyed in accordance with established procedures. At the very least, the prosecutor should have picked up the phone and called the records section of the police department as soon as he received defense counsel's letter. In that call he should have asked the police to set aside the tapes of the several 911 calls which the defense had requested and not to erase them as it would otherwise do in the normal course of business. *fn8 The purpose of the Jencks Act is "to aid in the search for truth by permitting access to prior statements of government witnesses for possible impeachment." Fields v. United States, 368 A.2d 537, 539 (D.C. 1977) (citations omitted). That purpose is frustrated when the government, through negligence or indifference, allows potential Jencks Act statements to be needlessly destroyed or lost.
Nevertheless, a violation of the duty to preserve which results in the loss of discoverable statements does not automatically require the imposition of sanctions. Gibson v. United States, 536 A.2d 78, 84 (D.C. 1987); Bartley v. United States, supra note 6, 530 A.2d at 697. Ever since United States v. Augenblick, 393 U.S. 348, 21 L. Ed. 2d 537, 89 S. Ct. 528 (1969), the rule has been that "the administration of the Jencks Act must be entrusted to the 'good sense and experience' of the trial Judges subject to 'appropriately limited review of appellate courts.'" Id. at 355, quoting Palermo v. United States, supra note 6, 360 U.S. at 353. The decision whether or not to impose sanctions for Jencks Act violations, as well as the choice of sanctions, is within the trial court's discretion. Its decision either way will not be overturned on appeal unless the appellant can show that this discretion has been abused. Jones v. United States, 535 A.2d 409, 411 (D.C. 1987); Montgomery v. United States, supra, 384 A.2d at 662.
When a Jencks Act statement has been lost or destroyed, the trial court must consider several factors in deciding ...