Appeal from the Superior Court of the District of Columbia; (Hon. Shellie, F. Bowers, Trial Judge)
Before Ferren,* Acting Chief Judge, and Terry, Associate Judge, and Pryor, Senior Judge.
The opinion of the court was delivered by: Pryor
PRYOR Senior Judge: A jury convicted appellant of rape while armed, *fn1 carnal knowledge of a minor, *fn2 robbery while armed, *fn3 kidnapping while armed, *fn4 two counts of sodomy on a minor, *fn5 and possession of a firearm during a crime of violence. *fn6 Appellant makes two claims on appeal: (1) that the trial court erred when it denied his alibi witness' pretrial motion to disclose the transcript of her own grand jury testimony, and (2) that the trial court erred when, instead of dismissing the indictment, the court gave a missing evidence instruction as sanction for the government's failure to preserve potentially exculpatory evidence. We affirm.
The evidence presented at trial showed that the fifteen-year-old victim in this case was walking home unaccompanied from a bus stop at 11:00 p.m., when a man placed a gun to her back and forced her to walk with him. He led her down an alley to the rear of a house which stood behind a padlocked chain link fence. The man unlocked the padlock with a key he was carrying and took the victim through the back door entrance to the house, which was unlocked. They entered a downstairs room, where the assailant sexually assaulted the victim for an hour. When he was finished, he forced her to accompany him to the upper floor of the house, where he retrieved some mail from a window sill. They exited the house by the same means they had entered and, after locking the padlock on the gate behind them, the assailant fled, carrying all of the victim's clothes except the jacket and socks she had on.
Shortly thereafter a woman in a neighboring house, who observed the victim standing nearly naked in the alley crying, offered assistance. The victim described her assailant to the woman and pointed to the house in which the assault occurred.
When the victim arrived home, her mother phoned the police. That night, the victim described her assailant to a detective as a black male, 5'5" tall; *fn7 she identified the exterior of the house in which the attack occurred and described its layout and furnishings; and she was examined by a physician at D.C. General Hospital. *fn8 The examining physician found strong evidence of sexual assault in the victim's level of emotional upset, bruising consistent with her claims, and the presence of blood in her rectum. *fn9
Nearly two months after the assault, and then again several weeks later, the victim was travelling on a city bus with her mother when she recognized one of her fellow passengers as her assailant. Because she was afraid, she did not confront him on either occasion; however, the police were informed of the sightings. Later, when presented with a photographic array, the victim identified a photograph of appellant as her assailant. She also identified him in a lineup and again in the courtroom. *fn10
Appellant admitted that he and his family had resided in the house in which the victim was raped and that they were in the process of moving out of that house during the week of the rape. He also admitted that he was one of three family members (all of them male) who had a key to the padlock on the back gate, and that he and his brother had an arrangement whereby they alternated retrieving the mail from their former residence.
At trial, appellant presented a defense of misidentification *fn11 and alibi. Nataniah Mosby, appellant's girlfriend, was his primary alibi witness. Both Ms. Mosby and appellant testified that they met each other in the early evening on the day the rape took place, and proceeded to appellant's family's new residence, where they spent the night. Ms. Mosby's friend, Wilmore Blakeney, testified that he went to appellant's family's new residence that evening at around 10:45 p.m. to deliver something to Ms. Mosby. He observed appellant and Ms. Mosby in the home at that time.
Nature of Grand Jury Proceedings
The grand jury serves a "dual function" in our criminal Justice system, United States v. Sells Eng'g, Inc., 463 U.S. 418, 423, 103 S. Ct. 3133, 77 L. Ed. 2d 743 (1983), operating as "both a sword and a shield." 1 C. WRIGHT, FEDERAL PRACTICE & PROCEDURES § 101 (2d ed. 1982) (quoting In re Grand Jury January, 1969, 315 F. Supp. 662, 671 (D. Md. 1970)). While the grand jury is granted very broad investigatory powers to determine whether there is probable cause for criminal indictment, see, e.g., United States v. Calandra, 414 U.S. 338, 344, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974), it also serves as a "protective bulwark. . . . between the ordinary citizen and an overzealous prosecutor . . . ." United States v. Dionisio, 410 U.S. 1, 17, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973).
A policy of secrecy has been deemed necessary to enable the grand jury to fulfill its dual purposes. Sells Eng'g, supra, 463 U.S. at 424 (citing United States v. Procter & Gamble Co., 356 U.S. 677, 681, 2 L. Ed. 2d 1077, 78 S. Ct. 983 (1958)). This policy of secrecy is "older than our Nation itself," Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 3 L. Ed. 2d 1323, 79 S. Ct. 1237 (1959); see also Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 n.9, 60 L. Ed. 2d 156, 99 S. Ct. 1667 (1979), and is codified in the criminal procedure rules of both the federal and District of Columbia courts. See FED. R. CRIM. P. 6; Super. Ct. Crim. R. 6.
Secrecy has been found to protect several identified interests:
(1) to prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt."
Procter & Gamble, supra, 356 U.S. at 681-82 n.6 (1958) (quoting United States v. Rose, 215 F.2d 617, 628-29 (3rd Cir. 1954)).
Whether the policy of secrecy continues to serve a legitimate purpose is the subject of ongoing debate, see 1 WRIGHT, (supra) , § 106 n.2, particularly where a breach of secrecy after the completion of a grand jury proceeding is contemplated. Id. at 244-45; see, e.g., United States v. Moten, 582 F.2d 654, 662-63 (2d Cir. 1978). The Supreme Court has stated that the interest in secrecy is "reduced not eliminated merely because the grand jury has ended its activities." Douglas Oil, supra, 441 U.S. at 221-24. We think it necessary for a court to carefully evaluate the impact of disclosure on the interests promoted by grand jury secrecy, even when the request for disclosure arises after the proceedings have concluded, in order to strike an appropriate balance between the investigatory powers of the state and the rights of individual citizens.
Further, some argue (including appellant here) that the policy of grand jury secrecy gives the government an unfair advantage when considered in light of the government's ongoing custody of grand jury transcripts. See Super. Ct. Crim. R. 6 (e)(1). *fn12 Because the transcripts are within its control, the government has use of them in preparing for trial, *fn13 while the defendant's ...