Marlow v. U.S., 1994
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D I S ~ T OP COLOMBIA COURT APPEALS No. 92-CF-902 f IL M R 9 99~ COURT OF PPE LS District o f Columbia criminal Division Hon. Herbert G. Dixon. Jr. ~ r a l Judgs) (Argued March 3 , 1994 Decided March , 1994) Before FARREU and KING, AssociateJudges and GALLAGHER, Senior Judge. MUOIU\lU)UM OPINION J\IrD JUD(jXBIIT Appealing from his conviction for distribution of heroin (D.C. Code § 33-541 (a) (1», appellant assigns six points of error, none of which we conclude warrants reversal. First, the trial judge did not abuse his discretion i n refusing t o order production o f two police forms, the PD-152 and PD-106. Appellant does not explain how the forms were discoverable under Super. ct. Crim. R. 16, and the fact that he sought their production ma a trial subpoena under Super. ct. Crim. R. 17 (c) did not entitle him t o documents otherwise not discoverable. See Brown v United States, 567 A.2d 426, 427 (D.C. 1989), em. denied 494 U.S. 1037 (1990). In requiring production only of those documents which were relevant to this case - - the PD-127, PD-128, and PD-129 - - the trial judge properly exercised his discretion. Second, appellant's motion t o suppress identifications was properly denied, as the trial judge's findings that the identification procedures were not unduly suggestive and the identifications were reliable are supported by the evidence and in accordance with law. Stewart v United States, 490 A.2d 619, 623 (D.C. 1985 ; seeMansonv.Bratbwaite, 432 U.S. 98, 114-17 (1977). Third, assuming a r . g u ~ o that appellant made a timely request for the photograph shown t o Officer Meyers a week after the drug sale, we find no abuse of discretion i n the trial court's failure to impose sanctions under Rule 16 (in fact, none were requested) for the prosecutor's belated disclosure of the photograph to MELVIN G. MARLOW, MPEU.ANT, v . F5419-91 UNITED STATES, MPEUEE. Appeal from the Superior court of the
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Transcript of Marlow v. U.S., 1994
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D I S ~ T OP COLOMBIA COURT OP APPEALS
No. 92-CF-902
f
ILM R 9 9 9 ~
COURT OF PPE LS
Dist r ic t of Columbiacriminal Division
Hon. Herbert G. Dixon. J r . ~ r a l Judgs)
(Argued March 3, 1994 Decided March 9, 1994)
Before FARREU and KING, AssociateJudges and GALLAGHER, SeniorJudge.
MUOIU\lU)UM OPINION J\IrD JUD(jXBIIT
Appealing from his conviction for dis t r ibu t ion of heroin (D.C.Code § 33-541 (a) (1» , appellant assigns s ix points of error , noneof which we conclude warrants reversal .
Firs t , the t r i a l judge did not abuse his discret ion inrefusing to order production of two pol ice forms, the PD-152 andPD-106. Appellant does not explain how the forms were discoverable
under Super. c t . Crim. R. 16, and the fact tha t he sought t he i rproduction ma a t r i a l subpoena under Super. c t . Crim. R. 17 (c) didnot en t i t l e him to documents otherwise not discoverable. See Brown
v United States, 567 A.2d 426, 427 (D.C. 1989), em. denied 494 U.S.1037 (1990). In requir ing production only of those documents whichwere relevant to t h i s case - - the PD-127, PD-128, and PD-129 - - thet r i a l judge properly exercised his discre t ion.
Second, appellant ' s motion to suppress ident i f icat ions wasproperly denied, as the t r i a l judge's f indings tha t theident i f icat ion procedures were not unduly suggestive and theiden t i f ica t ions were re l iab le are supported by the evidence and in
accordance with law. Stewart v United States, 490 A.2d 619, 623 (D.C.1985 ; seeMansonv.Bratbwaite, 432 U.S. 98, 114-17 (1977).
Third, assuming a r . g u ~ o tha t appellant made a t imely requestfor the photograph shown to Officer Meyers a week a f t e r the drugsale, we f ind no abuse of discret ion in the t r i a l court ' s fa i lu reto impose sanctions under Rule 16 ( in fact , none were requested)for the prosecutor 's belated disclosure of the photograph to
MELVIN G. MARLOW, MPEU.ANT,
v. F5419-91
UNITED STATES, MPEUEE.
Appeal from the Superior court of the
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defense counsel. Neither in his br ie f nor a t oral argument wasappellant able to point to speci f ic prejudice from the non
disclosure of the photograph ear l ie r . See Washington v Untted States,600 A.2d 1079, 1081 (D.C. 1991).
Fourth, nei ther the Brady doctrine' nor the Jencks Act, 18
U.S.C. § 3500; see Super. ct . Crim. R. 26.2, required the t r i a ljudge to order disclosure of grand jury testimony of witnesses whodid not t es t i fy a t t r i a l . Appellant made no showing tha t any such
testimony was exculpatory under Brady, and, under the Jencks Act,disclosure by the government of documents in i t s possession i s
l imited to pr ior statements of a witness who bas testified. UnttedStates v Malcolm, 331 A.2d 329, 333 (D.C. 1975) (emphasis added).
Grand jury testimony by other witnesses in some manner relying uponstatements by persons who have t es t i f i ed a t t r i a l fa i l s to meet the
substantial ly verbatim and contemporaneous recordation
requirements of the Jencks Act. Cf Palenno v United States, 360 U. S.343, 352-53 (1959); Coleman v United States, 515 A.2d 439, 447 (D.C.
1986 , cert. denied 481 U. S. 1006 (1987).
Fif th , for the reasons se t for th in de ta i l in the government'sbrief a t pp. 34-43, on none of the occasions appellant c i tes didthe t r i a l judge impose improper res t r ic t ions on appel lant s crossexamination of government witnesses.
Finally, Logan v United States, 591 A.2d 850, 853 (D.C. 1991),requires re ject ion of appel lant ' s claim tha t the informationalleging pr ior convictions fai led to give appellant the required
statutory notice of the government's intent to seek an enhancedsentence.
Affirmed.
FOR THE COURT~ ~ t ?WILLIAM H. NG,Clerk
See Brady v Maryland, 373 U. S. 83 (1963); United States v Bagley473 U.S. 667 (1985).
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No 92-CF-902
Copies to:
Honorable Herbert G Dixon J r
Clerk Superior Court
Richard Todd Hunter Esquire801 North Pi t t Stree tSuite 209 The Port RoyalAlexandria V 22314
John R Fisher EsquireAssistant United States Attorney
