Before Terry, Steadman, and Glickman, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Linda D. Turner, Trial Judge)
After a jury trial, appellant was convicted of assault on a police officer while armed and carrying a dangerous weapon (knife). His only contention on appeal is that the court erred in failing to impose sanctions on the government for its inability to produce the knife at trial. We affirm.
Detective Charles Bonilla testified that on April 12, 1996, in the early evening, he had stopped in a small market on Park Road, N.W., to get something to eat when he was paged by his wife. He went outside and called his wife on a pay phone in front of the store. As he was talking to her, Bonilla noticed a man C appellant Martinez C standing nearby and staring at him. Bonilla at first paid him no attention but continued his conversation. After a few moments, however, Bonilla noticed Martinez walking toward him with a beer bottle in his left hand and a Alarge knife,@ about eight inches long, in his right hand. The knife was partially concealed by the way that Martinez was holding it, with the point toward his armpit, but Detective Bonilla could clearly see that it was a knife. Bonilla immediately dropped the phone, drew his service revolver, pointed it at Martinez, and said to him (in Spanish), AI=m the police, drop the knife.@ Bonilla also displayed his badge. Martinez, however, continued walking toward him and said, AI don=t care if you are the police.@ Bonilla kept repeating in a loud voice, AI=m the police, please throw the knife down,@ and a bystander also said (in Spanish), ADrop the knife, he=s a police officer,@ but Martinez held on to the knife. After a couple of minutes, during which Martinez began to twirl the knife in his hand, he Amade a sudden movement@ with the knife toward Detective Bonilla. Martinez was Agripp[ing] the knife hard,@ and the blade was turned toward Bonilla. Fearful for his life, *fn1 Bonilla fired his gun once toward Martinez. The bullet struck Martinez in the chest, and he dropped the knife and fell to the ground. He was later taken to a hospital and treated for his wound.
Detective Bonilla=s testimony was corroborated by Iris Compres, the cashier in the store where Bonilla had stopped to have supper. Ms. Compres knew him from his regular visits to the store (Ain this store many policemen come to eat@). She testified that from inside the store she heard Detective Bonilla yelling in a loud voice, ADrop the knife, I=m a policeman.@ When she went outside, she saw Bonilla pointing his service revolver at a man with a knife in his hand, pointed upward. Another man, whom she knew only as Cesar, was saying, AHe=s a policeman, drop the knife.@ *fn2 Bonilla too kept repeating his command to Adrop the knife@ and his statement, AI=m a policeman.@ The man with the knife was also saying something, but Ms. Compres could not hear what it was. Then she heard a Aboom,@ and the man dropped the knife on the ground.
Officer Larry Johnson, a crime scene search officer, testified that he recovered the knife and dusted it for fingerprints, but found none that were usable. His description of the knife on a police property form matched the description given by Detective Bonilla in his testimony. The knife was not produced at trial because, shortly before the trial began, a fire had damaged a computer at the police warehouse where it was kept. The computer contained the only record of its location within the warehouse; consequently, the knife could not be located in time to bring it to court, even though a physical search of the warehouse was conducted and, according to Officer Johnson, was still ongoing at the time of trial.
The defense theory was that Detective Bonilla accidentally shot Mr. Martinez, and that in order to cover up his blunder, the police planted a knife at the crime scene. That knife was later intentionally lost, according to this theory, so that it could not be examined and tested by the defense. The only defense witness was a self-employed forensic consultant, who testified as an expert. His testimony highlighted certain inconsistencies between Officer Johnson=s crime scene search report and a photograph which showed the knife lying on the ground. Martinez did not testify.
The trial court gave a missing evidence instruction *fn3 at defense counsel=s request. The court expressed some doubt that there was sufficient foundation for the instruction in the evidence, but agreed to give it because the government did not object.
Martinez contends that the trial court should have sanctioned the government for its failure to produce the knife. His argument is based on Super. Ct. Crim. R. 16, which governs discovery in criminal cases, and on Brady v. Maryland, 373 U.S. 83 (1963).
This case was originally set for trial on September 25, 1996, but it was continued six times, for various reasons, until May 28, 1998, when the trial finally began. The record shows, however, that shortly before the first scheduled trial date in September 1996 defense counsel sent the prosecutor a detailed written request for discovery, and that a discovery conference was held in October 1996, at which the prosecutor disclosed or made available to the defense various evidentiary items. It is undisputed that defense counsel was well aware of the existence of the knife as early as September 1996, *fn4 and it does not appear that the prosecutor made any effort to hinder counsel=s access to the knife. It is also abundantly clear from the record that defense counsel ...