UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia.
Bazelon, Chief Judge, and Wright and Mackinnon, Circuit Judges. MacKinnon, Circuit Judge, dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WRIGHT
Appellant's court-appointed counsel employed an investigator from the Public Defender Service to interview potential witnesses. The investigator did so and sent to counsel a report consisting of summaries of the interviews. At trial the court ordered the investigator, who had testified as a defense witness, to turn over a copy of the report to the Government. The main question raised on this appeal concerns the propriety of this procedure. We believe the trial court erred in ordering disclosure of the report to the Government, and accordingly we reverse. I
Following a trial by jury, appellant was found guilty of armed robbery and assault with a dangerous weapon, for which he received concurrent sentences of two to six years and one to three years respectively. The Government's case consisted of the testimony of the victim, Lonnie Richardson, and two arresting officers. Accepting their testimony, appellant and another man confronted Richardson at a bus stop at about 3:30 one morning in August 1971, trying to sell him a charge-a-plate. Richardson rejected the offer and the two left. Richardson went off to get a cup of coffee to take home, and when he returned to the bus stop the two approached again and appellant asked if he had any money. Richardson testified that appellant threatened him with a soda bottle, saying he would "bust me in my head" if Richardson did not give them anything. Richardson admitted having some change in his change purse, and appellant removed 70 cents from the purse while his accomplice took a dollar from Richardson's pocket. The two then fled.
Immediately after the robbery, Richardson telephoned the police. When they arrived by car at about 4:00 A.M., Richardson got into the back seat of the car and began to give the officers descriptions of his assailants. While seated there he saw two men about a block away and told the officers they were the men who robbed him. The police drove up alongside the two men and arrested appellant. The accomplice ran away and was not apprehended. Richardson made an on-the-scene identification of appellant as one of the robbers.
In his opening statement defense counsel indicated he would prove Richardson was a homosexual. The trial court interrupted and called counsel to the bench, desiring an explanation of the relevance of Richardson's alleged homosexuality. Defense counsel said he intended to prove an occasion when Richardson saw appellant talking to a homosexual. Richardson allegedly stared at appellant and appellant did not return the stare. According to defense counsel, the stare indicated a desire on Richardson's part to make sexual advances toward appellant, and the robbery charge was fabricated because of appellant's failure to accede to the advances. The court felt the incident was so ambiguous and susceptible to misinterpretation that its proof would amount to an appeal to the jury to disbelieve Richardson simply because he was a homosexual. And it barred further reference to the matter.
Appellant offered two alibi witnesses. William Holloway testified that on the morning in question he was driving with appellant and Teresa Fleming, Holloway's cousin, near DuPont Circle and Rhode Island Avenue, N.W., far from the scene of the robbery. Defense counsel then called Teresa Fleming, who testified she had known appellant for a long time and was dating him the month the robbery allegedly took place. She was unable, however, to remember anything concerning the morning in question and was dismissed as a witness by the court since she had no relevant evidence to contribute.
Robert Reeves, an investigator for the Public Defender Service who had investigated the case for defense counsel, was the last defense witness. Reeves first testified about his examination of the lighting conditions at the scene of the crime. He then testified that he interviewed Richardson several months after the offense, recounting what Richardson had told him and relying on his present recollection of the interview without reference to any notes or reports. With only minor exceptions, *fn1 Richardson's interview as reported by Reeves was consistent with Richardson's trial testimony. At the outset of his cross-examination of Reeves, the prosecutor moved for production of Reeves' investigative report. Over objection, the trial court ordered the report produced and turned over to the prosecutor.
The Government made two uses of the report. In cross-examining Reeves, the Government showed that Reeves had slightly misstated his interview with Richardson, thereby dispelling whatever minor inconsistencies existed between Richardson's in-court testimony and Richardson's interview as reported by Reeves' direct testimony. *fn2 More importantly, as the Government was quick to notice, the investigative report obtained from Reeves included not only a summary of Reeves' interview with Richardson, but also summaries of his interviews with other potential witnesses, including Miss Fleming, who Holloway testified accompanied Holloway and appellant as they drove around DuPont Circle about the time of the robbery. The investigative report read:
"8. On January 25, 1972, at about 7:30 P.M. this investigator called Miss Teresa Fleming by phone . . . . and obtained the following information:
"a. Miss Fleming stated that she does know Anthony Wright, but he is not and never has been her boyfriend.
"b. Miss Fleming stated that she did not pick Anthony Wright up during the month of August or any other time at 2:00 or 3:00 a.m. and ride anywhere with him.
"c. Miss Fleming stated that she has never rode to DuPont Circle or 14th and Rhode Island Avenue, N.W., with Anthony Wright.
"d. Miss Fleming stated that if Anthony Wright said that he rode with her to visit anyone, he is a liar."
The Government quiclky took advantage of this unexpected treasure. Reeves was called as a Government rebuttal witness; he recounted, over objection by defense counsel, that he had interviewed Miss Fleming, that she had denied ever driving around with appellant at 2:00 or 3:00 in the morning any time during August, and that she had said if appellant said otherwise he was a liar.
During its closing argument the Government told the jury it could take into consideration in its deliberations the demeanor of the defendant. The defense immediately objected--the defendant had not taken the stand and his demeanor as a witness was not at issue. The court overruled the objection and the Government proceeded to expand on the point, saying:
"Mr. Anthony Wright has been present throughout this trial, has found a good part of it humorous, other parts he couldn't stand. And you may definitely ...