Appeal from the Superior Court of the District of Columbia (F-3963-01). (Hon. Natalia Combs Greene, Trial Judge).
The opinion of the court was delivered by: Terry, Associate Judge
Before WAGNER, Chief Judge, and TERRY and REID, Associate Judges.
Appellant Lyles was convicted of unauthorized use of a vehicle.*fn1 On appeal he contends that the trial court erred in ruling that notes taken by a Maryland police officer during a witness' oral report of the crime, which were never in the possession of the United States or any agency of the District of Columbia, were not subject to disclosure under the Jencks Act, 18 U.S.C. § 3500 (2000). We affirm.
On Sunday afternoon, June 17, 2001, Catherine Brunson drove her fiancé's 1984 gray Ford LTD to the Eastover Shopping Center in Oxon Hill, Maryland, to buy a six-pack of beer.*fn2 After arriving at the shopping center, Ms. Brunson parked the car in the parking lot, leaving the keys in the ignition and her driver's license in the car's console. She then entered a store and bought some beer. When she came out of the store less than ten minutes later, the car was gone.
Before returning home, Ms. Brunson stayed a few minutes at the shopping center, asking passersby if they had seen her car. She did not immediately contact the police because she did not have a complete record of the car's identifying information. Instead, she waited for her fiancé, Michael Conyers, to return home from a day of fishing. After Conyers returned that evening, he wrote down the information that she needed. Ms. Brunson then called the police to report the crime while Mr. Conyers began looking for his Ford LTD by driving his other car around the area. When Prince George's County police officers arrived at Ms. Brunson's home a few minutes later, she told them what had happened earlier that day.
For the next nine nights, Mr. Conyers continued to drive around nearby neighborhoods looking for his car. On the evening of June 26, he saw his Ford LTD coming toward him near the Eastover Shopping Center. Immediately he noticed that the car still had his license plates on it. Mr. Conyers quickly made a U-turn and followed the Ford LTD, which soon entered the District of Columbia and approached Fourth Street, Southeast. While tailing his Ford LTD, Mr. Conyers was able to get the attention of a police officer in a passing patrol car by honking his horn and then yelling out, "He stole my car, he stole my car." Officer Dana Robinson, hearing Conyers' cries, reacted immediately by turning on her patrol car's flashing lights and blocking the path of the Ford LTD. Despite the officer's actions, the LTD drove around the police car and continued down Livingston Terrace. Officer Robinson pursued the LTD in her police car, and eventually the LTD pulled over at the end of the street near a stop sign.
After the LTD stopped, the driver, later identified as appellant, got out and began to walk away. A passenger in the front seat also alighted and started to run. Officer Robinson got out of her police car, drew her service revolver, and directed appellant to stop and sit on the curb. The officer asked appellant "where he got the vehicle from." Appellant replied that he had bought the car for $200 from a man named "Gerald," but had failed to receive a bill of sale. Appellant then produced the car's registration, still in the name of Mr. Conyers, and said that he was supposed to receive the bill of sale the following day.
Appellant was the only defense witness. He testified that he bought the Ford LTD on June 26, 2001, in Oxon Hill, Maryland, from a man named Gerald - whose last name he did not know - for $200.*fn3 Gerald gave appellant the keys and the registration to the car, and told him that he did not then have the car's title, but could get it the following day. Upon learning that the title could not be provided immediately, appellant said, he called the Prince George's County Police Department from a friend's cellular phone to ask if the car had been reported stolen.*fn4 After the police told him they could not provide that information, appellant decided to go ahead and buy the car anyway without the bill of sale. Appellant admitted that Officer Robinson pulled him over later that day, but explained that he drove around her police car because he was unable to stop immediately.*fn5
B. The Jencks Act Request
Before the trial began, the prosecutor stated that "all of the police paperwork that is completed in this case" had been turned over to the defense.*fn6 Ms. Brunson later testified on direct examination that she told the police officers who responded to her 911 call "exactly what I said here in court, and they wrote it down and they left." On cross-examination, Ms. Brunson was asked if she spoke with Prince George's County police officers. She replied that she called 911 from her home in Prince George's County and that uniformed police officers came to her home.*fn7 Ms. Brunson told the police officers what had happened during her trip to the Eastover Shopping Center, and one of the officers took notes of the incident on a "flip pad," specifically writing down her description of the car, her name, and her telephone number at work. Hearing this, defense counsel requested that this police report be produced pursuant to the Jencks Act.
During the ensuing bench conference, the prosecutor stated that the report was "a Maryland report" and was therefore "not in my jurisdiction" because he had no control over it. The prosecutor noted in addition that the Maryland police documents were "equally accessible" to both the defense and the United States.*fn8 The court responded that it did not matter which police department took the report or notes ("it would be Jencks no matter who took it"); all that the defense was required to do was to show that a "substantially verbatim" statement had been recorded. At the court's suggestion, defense counsel attempted to elicit testimony from Ms. Brunson which would demonstrate that substantially verbatim statements had been taken down by the police. Following this attempt, however, the court found that the police notes in question were not Jencks ...