May 9, 1994
EMANUEL S. DAVIS, APPELLANT
UNITED STATES, APPELLEE
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 access to transcripts is very limited. See Discussion of Discovery Rules and Jencks Act, (infra).
While it is obvious that "in comparison with the right of the defendant and third parties, the right of the government to see and use the grand jury minutes is incomparably the greatest," 1 M. RHODES, ORFIELD'S CRIMINAL PROCEDURE UNDER THE FEDERAL RULES § 6:123 (2d ed. 1985), and that the record of a grand jury proceeding "constitutes a huge storehouse of relevant data which in the exclusive possession of the government," United States v. Ball, 49 F.R.D. 153, 159 (E. D. Wis. 1969), defendants are "not entitled to production of grand jury minutes solely for the reason that the government had the use of them in preparing its case." 1 RHODES, (supra) , § 6:123. This asymmetry in access to information is built into our criminal Justice system and represents a justifiable balance between the competing interests of the accused and the public.
We note that legislatures and courts have balanced similarly competing interests in determining the appropriate scope of discovery in criminal prosecutions. While broad discovery rules "promote the fullest presentation of the facts, minimize opportunities for falsification of evidence and eliminate the vestiges of trial by combat," State v. Tune, 13 N.J. 203, 98 A.2d 881, 884 (N.J. 1953) (quotation omitted), a defendant need not be afforded access to the "whole evidence against him to pick over at his leisure, and make his defense, fairly or foully. . . ." United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923) (Learned Hand, J.).
Under Super. Ct. Crim. R. 16, which governs pretrial discovery in this jurisdiction, an accused has the right to discover specific types of information within the government's control, including any written record of the defendant's relevant statements. *fn14 However, internal documents made by the government in connection with an investigation or prosecution are excluded from the scope of discovery. Super Ct. Crim. R. 16 (a)(2). Thus, Rule 16 represents a considered balance between the interests of the accused and the state.
The Jencks Act, 18 U.S.C. § 3500 (1988), is another method by which an accused may secure information in the possession of the prosecutor. After a government witness has testified at trial an accused has the right, pursuant to the Jencks Act, to review any prior statements by that witness that are within the government's control and are relevant to the witness' direct testimony, including the witness' testimony before a grand jury. The "advantages provided in the Jencks Act were never intended to be transposed to the pretrial context; rather, the heavy burden incumbent upon the prosecution pursuant to that act was intended to safeguard the fairness of criminal trials by providing defendants with appropriate tools for cross-examination." United States v. Wolfson, 289 F. Supp. 903, 912 (S.D.N.Y. 1968). Thus, a defendant is prevented from tailoring his defense in response to a pretrial review of the grand jury testimony of witnesses who will eventually testify at trial. The Jencks Act represents a balancing of the interests of the accused and the state similar to that underlying the policy of secrecy surrounding grand jury proceedings and the limits on the otherwise broad discovery rules.
Against this background, we turn to appellant's claim that the trial Judge erred when he denied the pretrial motion made by appellant's trial counsel on behalf of Nataniah Mosby, appellant's primary alibi witness, requesting disclosure of the transcript of the testimony she presented to the grand jury that issued the indictment underlying the prosecution of appellant.
Prior to ruling on the motion the trial Judge engaged in the following colloquy with Ms. Mosby:
Q: The defense attorney indicates that you wanted to make some sort of request to the court.
Q: Which is?
A: I want to see my testimony statement.
Q: Why do you want to see it?
A: No purpose, I just want it.
Q: Okay. That is the only reason why you wanted to take a look at it?
Q: Do you remember the events of October 4 [the day of the rape], what happened?
Q: Is your memory shaky on that, what happened on October 4?
A: I remember some things.
The trial Judge denied the motion because no showing of "particularized need" had been made.
Appellant contends that it was error for the trial court to apply the particularized need test where the request for pretrial disclosure of grand jury testimony was initiated by the grand jury witness herself, *fn15 and that the court's application of the wrong standard resulted in prejudice to him. We disagree with both contentions.
Standard of Review
Grand jury transcripts "shall remain in the custody and control of the attorney for the government unless otherwise ordered by the Court in a particular case." Super. Ct. Crim. R. 6 (e)(1) (1993 Repl.). *fn16 The court is to order the pretrial release of a grand jury transcript only when "the party seeking disclosure has established a particularized need that outweighs time-worn considerations." United States v. Alexander, 428 A.2d 42, 53 (D.C. 1981); see also Sells Eng'g, supra, 463 U.S. at 434; *fn17 Johnson v. United States, 616 A.2d 1216, 1237 n.36 (D.C. 1992), cert. denied, U.S. , 113 S. Ct. 1611 (1993); Salim v. United States, 480 A.2d 710, 717 (D.C. 1984).
A particularized need is established where the parties seeking disclosure "'show that the material they seek is needed to avoid a possible inJustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.'" Alexander, supra, 428 A.2d at 53-54 (quoting Douglas Oil, supra, 441 U.S. at 222). The trial court has substantial discretion in determining whether this burden has been met, Law, supra note 16, 488 A.2d at 916; Salim, supra, 480 A.2d at 717; see also Johnson v. United States, 398 A.2d 354 (D.C. 1979), and we will reverse only upon a finding of abuse of discretion. See Alexander, supra, 428 A.2d at 52.
Application of the Standard to a Witness' Request for Her Own Grand Jury Testimony
Appellant correctly states that this court has not issued an opinion wherein we have reviewed a trial court's ruling on a request arising in precisely this posture -- a trial witness' pretrial request for a transcript of her own grand jury testimony. However, appellant mistakenly concludes that because our decision in Alexander, supra, involved a defendant's request for the pretrial disclosure of a third party's grand jury testimony, the particularized need test announced in that case is not applicable to Ms. Mosby's request for her own grand jury testimony. *fn18
Instead, relying primarily on In re Sealed Motion, 279 U.S. App. D.C. 294, 880 F.2d 1367 (1989) (per curiam), a D.C. Circuit case which is not binding on this court, see M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971), appellant contends that a grand jury witness has a presumptive right of access to the transcript of her grand jury testimony "absent a clear showing by the government that other interests outweigh the witness' right to transcript." Sealed Motion, supra, 279 U.S. App. D.C. at 298, 880 F.2d at 1371. nl9 Contra United States v. Lopez, 779 F. Supp. 13 (S.D.N.Y. 1991) (considering and declining to follow Sealed Motion). However, we view the holding of Sealed Motion in the particular context of that case -- namely, a request by a witness for a transcript of the testimony she gave before a grand jury convened by an Independent Counsel. Because an investigation by an Independent Counsel concludes with a published report (regardless of whether indictments are returned) in which individuals who testified before the grand jury may be named, the Independent Counsel Act of 1987, 28 U.S.C. § 591 et seq., empowers the court to "make such orders as are appropriate to protect the rights of any individual named in such reports." Id. at § 594 (h)(2). The need to protect these named witnesses gave rise to the court's Conclusion that they were entitled to use the transcripts of their own grand jury testimony to prepare written comments in response to the Counsel's report. Sealed Motion, supra, 279 U.S. App. D.C. at 295-97, 880 F.2d at 1368-70 (citing 28 U.S.C. § 594 (h)(2)). *fn19
We do not understand Sealed Motion to announce a new rule applicable to ordinary criminal proceedings. But see In re Heimerle, supra note 19 (adopting the presumptive right standard announced in Sealed Motion where a witness made a request for his grand jury transcript in the context of a subsequent criminal proceeding). Further, although the Sealed Motion court explicitly relied in its reasoning on the "sui generis nature of the Independent Counsel Act and its specific provisions", 279 U.S. App. D.C. at 295, 880 F.2d at 1368, the court buttressed its Conclusion by stating that the particularized need standard relevant to requests made pursuant to judicial proceedings had been satisfied in any event. Id.
We are more persuaded by the reasoning in Alexander and the application of the particularized need standard, which requires a showing that a requested disclosure of grand jury testimony is necessary "to avoid a possible inJustice," Alexander, supra, 428 A.2d at 53, and that the "need for disclosure is greater than continued need for secrecy." Id. See also Application of Executive Sec. Corp., 702 F.2d 406, 408-09 (2d Cir.), cert. denied, 464 U.S. 818, 104 S. Ct. 78, 78 L. Ed. 2d 89 (1983); United States v. Clavey, 565 F.2d 111, 114 (7th Cir. 1977), aff'd, 121 N.J. 173, 578 A.2d 1219 (7th Cir.) (en banc), cert. denied, 439 U.S. 954, 58 L. Ed. 2d 345, 99 S. Ct. 351 (1978); In re Bast, 542 F.2d 893, 896 (4th Cir. 1976); In re Bianchi, 542 F.2d 98, 100 (1st Cir. 1976).
Alexander sought to prevent the manipulation of a defense witness' testimony which might result if the defendant were to have pretrial access to the transcript of the grand jury testimony of that witness. The court stated that no showing of particularized need is made where a request for disclosure of a transcript is motivated by an interest in "thinking about and explaining any inconsistencies between that grand jury testimony and [the witness'] present recollections," Alexander, supra, 428 A.2d at 54, or to avoid impeachment. Id. *fn20
In the instant case, although Ms. Mosby initiated the request to disclose the transcript of her testimony, appellant acknowledges that she "clearly intended" to share it with defense counsel. We do not perceive in this request any cognizable interest in avoiding a possible inJustice as required under Alexander, supra. Rather, by characterizing his counsel's actions as a request on Ms. Mosby's behalf, appellant attempts to circumvent the precedent established by this court in Alexander. Because a rule according a witness a presumptive right to a transcript of her own grand jury testimony would afford the defendant access to the grand jury testimony of that witness who, for the sole purpose of benefiting the defendant, was willing to make such a request, we require a showing of particularized need regardless of whether the defendant or a witness initiates the request for disclosure of grand jury testimony. *fn21
While we acknowledge that many of the traditional reasons for protecting the secrecy of grand jury transcripts, see Procter & Gamble, supra, 356 U.S. at 681-82 n.6, are not implicated here (where the request is made subsequent to indictment and by the grand jury witness herself), the interest 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," id., is pertinent. Thus, appellant has failed to establish the second prong of the Alexander test, which requires a showing that the need for disclosure is greater than any continuing need for secrecy.
Given the structure of the grand jury system, and related discovery provisions, we conclude that the request presented here was not primarily a discovery request, but rather a hedge against impeachment. In any event, there was no attempt to make a showing of particularized need for release of the transcript of Ms. Mosby's grand jury testimony. On the facts presented we find no abuse of discretion. *fn22
Destruction of Evidence
Appellant appeals the denial of his pretrial motion to dismiss the indictment in which he alleged that the government violated Super. Ct. Crim. R. 16 *fn23 by destroying the sexual offense evidence kit ("sex kit") that was prepared shortly after the rape occurred. *fn24
According to testimony adduced at the hearing on the motion, the sex kit was inadvertently and improperly destroyed in January 1992 by a police officer who, upon the order of a superior officer, cleaned out the refrigerator in which sex kits were stored, removing over fifty kits that had no complaint or sex offense numbers on them. *fn25 Apparently, the kit prepared in conjunction with this case did not have either of these numbers affixed to it, as the case had not yet been designated "active." However, the government acknowledged that if the officer had been properly instructed, he would have used other information on the exterior of the kit to access the case file or identify the assigned officers in order to make the correct determination as to whether the kit should be preserved or destroyed.
At the Conclusion of the hearing, the trial court found that the police had not acted in bad faith and, although they had acted negligently, they were not grossly negligent. The court then gave a missing evidence instruction as a sanction for the government's destruction of the sex kit. *fn26
Standard of Review
When a party fails to comply with a discovery request, the trial court is authorized to "enter such . . . orders as it deems just under the circumstances." Super. Ct. Crim. R. 16 (d)(2). The imposition of sanctions requires the court to "consider a number of factors, including  the reason for nondisclosure,  the impact of nondisclosure, and  the impact of the proposed sanction on the administration of Justice." Wiggins v. United States, 521 A.2d 1146, 1148 (D.C. 1987) (citing Lee v. United States, 385 A.2d 159, 163 (D.C. 1979)). However, the matter of what sanction, if any, is appropriate is within the discretion of the trial court, see, e.g., Wiggins, supra, 521 A.2d at 1148; Sheffield v. United States, 397 A.2d 963, 967 (D.C.), cert. denied, 441 U.S. 965, 60 L. Ed. 2d 1071, 99 S. Ct. 2414 (1979); Cotton v. United States, 388 A.2d 865, 870 (D.C. 1978), and we will reverse only where we find abuse of discretion, Yoon v. United States, 594 A.2d 1056, 1061 (D.C. 1991), amended on reh'g, 610 A.2d 1388 (D.C. 1992) (citing Wiggins, supra), coupled with substantial prejudice to appellant's rights. Washington v. United States, 600 A.2d 1079, 1081 (D.C. 1991) (citing Lee v. United States, 454 A.2d 770, 776 (D.C. 1982), cert. denied, 464 U.S. 972, 104 S. Ct. 409, 78 L. Ed. 2d 349 (1983)).
Appellant claims that the trial court misapplied each of the three factors governing its exercise of discretion under Rule 16 (d)(2). See Wiggins, supra He argues that (1) the trial court should have found that the police were grossly negligent; (2) the trial court failed to apprehend that the contents of the sex kit might have exculpated appellant; and (3) the trial court failed to consider the impact of the sanction on the administration of Justice. We disagree.
First, we will not disturb a trial court's factual findings, such as the court's determination in this case that the police did not act in bad faith and were not grossly negligent, unless those findings are "plainly wrong or without facts to support ." D.C. Code § 17-305 (a); see also Johnson v. United States, 398 A.2d 354, 364-65 (D.C. 1979); cf., e.g., Slye v. United States, 602 A.2d 135, 139 (D.C. 1992) ("trial court's determination of the degree of negligence involved in the loss of a [Jencks Act] statement is a finding of fact and cannot be overturned on appeal unless clearly erroneous"). Further, even if the police conduct in this instance rose to the level of gross negligence, appellant cites no case which requires dismissal of an indictment on the basis of such a finding. *fn27
Second, the trial court appropriately assessed the impact of the nondisclosure. While tests performed on the missing sex kit might have exculpated appellant, it is equally plausible that the test results might have sealed the government's case against appellant, or produced no conclusive evidence whatsoever. It was for this very reason that the trial court properly issued a missing evidence instruction, permitting the jury, after vigorous argument by each party, to draw an inference against the government from the absence of the kit if they were so persuaded.
Finally, appellant argues that the trial court was obligated to make a finding as to the impact of the missing evidence instruction on the administration of Justice. Although the court is to consider this factor in making its determination, appellant cites no authority which suggests that the court's failure to make an explicit finding in this regard constitutes an abuse of discretion. The trial court could reasonably conclude that the missing evidence instruction would increase the government's attention to preserving evidence in the future, as the instruction afforded the jury the opportunity to reject the government's contention that destruction of the sex kit in this instance was inadvertent.
While we are troubled by the government's negligent failure to safeguard this significant piece of evidence, in light of the strong evidence supporting appellant's guilt presented at trial, we conclude that the trial court properly exercised its discretion by issuing a missing evidence instruction rather than ordering dismissal of the indictment.
We remand to the sentencing court in order that the carnal knowledge conviction may be vacated, *fn28 and affirm in all other respects.