In re S.H.
In re S.H.
Opinion of the Court
Appellant, a juvenile, appeals from the trial court’s adjudication of delinquency for felony murder and two related counts. Appellant makes two principal assignments of error. First, the trial court erred in forbidding in cross-examination any inquiry into bias of a key government witness stemming from his friendship with a possible alternative perpetrator of the crime. Second, the trial court erred in applying the “reverse Jencks” rule in juvenile proceedings, notwithstanding the absence of any statute or rule provision so authorizing, and in enforcing this rule by personally examining the file of a defense investigator in a vain search for reverse Jencks material.
I
During the pendency of this appeal, S.H. twice absconded from the custody of the juvenile authorities and was recaptured both times. Upon being advised of the first escape, which occurred after the appeal had been scheduled for argument,
“Disposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law.” Estelle v. Dorrougk, 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975) (per curiam).
Otherwise [appellant] is put in a position of saying to the court: “Sustain my writ and I will surrender myself, and take my chance upon a second trial; deny me a new trial and I will leave the State, or forever remain in hiding.” We consider this as practically a declaration of the terms upon which he is willing to surrender, and a contempt of its authority, to which no court is bound to submit.
Furthermore, dismissal prevents the waste of judicial time and effort on a decision which may have no practical effect. State v. Bono, 103 Wis.2d 654, 654-56, 309 N.W.2d 400, 400 (Ct.App. 1981).
Once an appellant has absconded, an appellate court acts within its discretionary powers in refusing to consider or to reinstate the appeal even if the appellant later returns to the jurisdiction and comes once again within the power of the court. For instance, if a fugitive appellant is apprehended before the appeal is heard, the court may nevertheless dismiss the appeal after his apprehension. See, e.g., Parrish, supra, — U.S.App.D.C. at —, 887 F.2d at 1107-08; Puzzanghera, supra, 820 F.2d at 26-27. Similarly, if an appellate court dismisses a case because the appellant has absconded, the court has discretionary power to deny appellant’s motion to reinstate the appeal. See, e.g., Hurley, supra, 391 Mass, at 76-80 & 78 n. 2, 461 N.E.2d at 755-56 & 755 n. 2 and cases cited therein. Cf. White v. State, 514 P.2d 814, 816 (Alaska 1973) (court will exercise discretion to reinstate an appeal where there is a showing of good cause). In such cases, different reasons justify the court’s refusal to consider the appeal. For one, an appellant who flees “disdains the entire judicial system.” Parrish, supra, — U.S.App.D.C. at —, 887 F.2d at 1108. Under this view, appellate review is inappropriate for one who “flouts the judicial process by escaping.” Persico, supra, 853 F.2d at 137. Second, a rule of dismissal in such cases “has the salutary effect of discouraging escape.” Id.
Accordingly, we have determined not to dismiss this appeal on the particular facts of this case. We now turn to the merits.
II
This proceeding arose out of a killing of a young man sitting in the passenger seat of a car at Condon Terrace, a drug-sale area.
A key government witness was nineteen-year-old Michael Cox, who knew both appellant and Brown.
Recently, in Ford v. United States, 549 A.2d 1124 (D.C. 1988), we had occasion to review the constitutional principles that are controlling here. As we observed, “[t]he Supreme Court has established that the refusal to allow any questioning about facts indicative of bias from which the jury could reasonably draw adverse inferences of reliability is an error of constitutional dimension, violating the defendant’s rights secured by the Confrontation Clause.” Id. at 1126 (citing Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 1435-36, 89 L.Ed.2d 674 (1986)) (emphasis in original). Direct questions asking whether a witness is lying or covering up for someone are insufficient in themselves to reveal his [or her] motive for doing so.
Nor can we conclude that, had bias cross-examination of Cox been allowed, the outcome would have been the same beyond a reasonable doubt and hence constitutionally harmless. We deal with a bench trial, to be sure, but neither we nor the trial court can know what a bias inquiry of this important witness might have led to. The evidence against appellant, while strong, was hardly overwhelming.
Ill
The Jencks Act, 18 U.S.C. § 3500 (1984), requires that the government turn over to the defense any pretrial statements made by witnesses after they have testified on direct examination. 18 U.S.C. § 3500(b). “Reverse Jencks” refers to the reciprocal practice which allows the government to obtain statements made by witnesses who testify for the defense at trial. Both Jencks and reverse Jencks are applicable in adult criminal proceedings through Super. Ct.Crim.R. 26.2 (1989).
At issue in this case was not whether a particular document was Jencks material, but whether a particular document (a witness’s pretrial statement) even existed at all. When defense counsel, after a voir dire of its investigator in which she stated that no such statement existed, objected to turning over the file on the ground that reverse Jencks has not been adopted in juvenile proceedings, the trial court stated that application of reverse Jencks was “routinely” the practice in her court and demanded that the file be delivered to her. The trial court then proceeded to call a recess, stating that the review of the investigator’s file was “going to take a while.” This review was apparently conducted out of the presence of defense counsel, as well as that of the government.
The controlling decision here is Middleton v. United States, 401 A.2d 109 (D.C. 1979), in which we held that reverse Jencks discovery could not be conducted in circumstances analogous to appellant’s. The government contends that the trial court’s application of reverse Jencks to juvenile proceedings was a proper exercise of its “inherent powers” to control the discovery process, citing United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). It is undoubtedly true, as we ourselves have recognized, that “[i]n proper circumstances, those [inherent] powers may support the compelled production of previously recorded witness statements in the possession of the defense.” Middleton, supra, 401 A.2d at 118.
Even if reverse Jencks were permitted in juvenile proceedings, the action of the trial court here would raise serious concerns. A trial court as finder of fact should refrain from unnecessary exposure to off-the-record information regarding the proceeding before it. Here, the defense investigator’s file contained, among other information, the names of approximately eighty people with whom the defense had spoken but decided not to call as witnesses, presumably because their testimony would be either unhelpful or damaging to the defendant. While the trial judge only looked through those portions of the file marked “statements,” she was still potentially exposed to other information in the file
Reversed and remanded.
. Initially, the case was scheduled to be heard on December 8, 1988.
. In Molinaro, the Supreme Court dismissed an appeal where the appellant, who was free on bail, had failed to surrender himself to state authorities and was deemed a fugitive by the state.
. Under D.C. law, where, as here, a person commits a crime while under 16 years of age, he or she remains within the juvenile system with respect to that offense until he or she reaches the age of 21 years. D.C.Code § 16-2301(3) (1989). S.H. attained 18 years of age on January 22, 1989.
. Estelle sustained the constitutionality of a Texas statute which provided for the automatic dismissal of a pending appeal by an escaped felon who fails to surrender voluntarily within 10 days of the escape. In that case, the prisoner had been recaptured two days after his escape.
. Although it did not specifically discuss the point, the Molinaro case involved an appeal brought under 28 U.S.C. § 1257(2) (1970), since repealed, which provided for mandatory Supreme Court jurisdiction ''[b]y appeal” in cases from state courts “where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States.” See 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure § 4003, at 500 (1977) (statutes providing Supreme Court jurisdiction “by appeal,” unlike those creating certio-rari jurisdiction, "establish an obligatory jurisdiction”). Furthermore, all federal circuit court dismissals of appeals involve appeals as of right under 28 U.S.C. § 1291 (1982). See Coppedge v. United States, 369 U.S. 438, 441, 82 S.Ct. 917, 919, 8 L.Ed.2d 21 (1962) ("[pjresent federal law has made an appeal from a District Court’s judgment of conviction in a criminal case what is, in effect, a matter of right”) (footnote omitted).
. There is no federal constitutional right to an appeal of a criminal conviction. Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977); see also Estelle v. Dorrough, supra, 420 U.S. at 536, 95 S.Ct. at 1175 (no federal constitutional right to state appellate review of a state criminal conviction).
. In ordinary circumstances, however, the fact that dismissal of a fugitive’s appeal may deter escape may not alone be a strong justification for dismissal. At least for adult offenders, Congress has already prescribed sanctions for escape from lawful custody; that offense is punishable by up to five years’ imprisonment. D.C. Code § 22-2601 (1989). See White, supra, 514 P.2d at 815-16 (”[w]e fail to find any reason why this court by judicial decree, should add withdrawal of the right of appeal to the statutory punishments prescribed for the crime of escape"); Marshall v. State, 344 So.2d 646, 648 (Fl.Dist.Ct.App. 1977) (denying motion to dismiss case of a re-apprehended appellant in part because "our legislature has established escape as a separate crime for which a person can receive a sentence of up to fifteen years”).
. In this case, for example, appellant’s flight forced this court to devote two calendar spaces to a single appeal. Additional resources have been consumed in the briefing of the escape issue and preparation of this opinion.
. For recent instances where courts have decided an appeal on the merits after the recapture of a fugitive appellant, see State v. Byrd, 448 N.W.2d 29, 30-31 (Iowa 1989) (refusing to dismiss fugitive’s appeal after his recapture); Hurley, supra, 391 Mass, at 78-82, 461 N.E.2d at 756-57 (reinstating recaptured fugitive’s appeal provided that the trial court finds no prejudice to the government because of delay caused by
. Appellant gets no credit for this happenstance, however. His first reapprehension occurred when he was arrested and charged as an adult with possession of marijuana and PCP. That case was later dismissed. The second recapture occurred when appellant was arrested for reckless driving and driving without a permit. He awaits trial as an adult on charges of unauthorized use of a motor vehicle and assault on a police officer while armed.
. There was a dispute whether the driver of the car got lost and happened on to Condon Terrace, or whether she had come there deliberately to purchase drugs. It was the decedent's twenty-first birthday and the driver was his mother.
. The only other eyewitness testimony was that of the decedent’s mother, who identified S.H. in a show-up several hours after the killing. In the interim, she had taken her son to the hospital where he was pronounced dead and had also been to the police station.
. The trial court cut short appellant’s original proffer in the middle of the second sentence by sustaining the objection to further questioning on the subject. Subsequently, an attempt by appellant’s counsel to make part of the record a written statement setting forth the proposed line of questioning was denied.
. See United States v. Robinson, 174 U.S.App.D.C. 224, 227, 530 F.2d 1076, 1079 (1976) ("Bias is never classified as a collateral matter which lies beyond the scope of inquiry, nor as a matter on which an examiner is required to take a witness’s answer. Bias may be proved ... even after a witness’s disavowal of partiality” (quoting 3 Weinstein’s Evidence § 607[03] at 607-17 (1975))).
. The government argues that any error was harmless because Cox’s credibility had already been sufficiently drawn into question through revelation of three drug-related delinquency adjudications and the grant of use immunity for his testimony. However, the issue of bias, based on his friendship with Brown, involves a distinct attack on the substance of Cox’s testimony (i.e., his motivation to finger appellant as the killer instead of Brown), which went to the heart of appellant’s defense.
. In Nobles, for example, a dispute existed whether the courtroom evidence given by prosecution witnesses was inconsistent with pretrial statements given to a defense investigator. The defense called the investigator to the stand to testify as to those pretrial interviews, but the trial court barred such testimony unless the defense produced the investigator’s pretrial record of those interviews. The Supreme Court agreed with the trial court's view that the investigator’s report was "highly relevant to the critical issue of credibility,” 422 U.S. at 232, 95 S.Ct. at 2167, and held that any right to withhold had been waived by the election to present the investigator as a witness to contrast his recollection of the contested statements with that of the prosecution’s witnesses. Id. at 239, 95 S.Ct. at 2170.
. The defense investigator was called as a defense witness, but only to testify to the authenticity of photographs of the area of the crime. The government argues that since the statements in question were those given by another defense witness to the investigator, the defense’s calling of that other defense witness justified the requirement that the defense produce any pretrial statement given by that witness. The problem with this reasoning is that it would in effect amount to a blanket reverse Jencks rule applicable to all defense witnesses. We do not agree with the government’s assertion that we impliedly sanctioned such a routine requirement in the language of footnote 27 of the Middleton opinion. Middleton, supra, 401 A.2d at 121 n. 27.
. The file is reported to have been composed of eleven sections, as follows: "Criminal information and reports”; “Statements”; “Subpoenas and I.D. forms"; "Follow-up info”; "Miscel.”; "Memos from the attorney”; "Car information”; "Subpoenas (served)”; “Police reports and in-for.”; "Memos to the file I"; and "Memos to the file II.”
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