United States v. James L. Butler, A/K/A Jesse Green

FAHY, Senior Circuit Judge:

The appeal is from a conviction of robbery, in violation of 22 D.C.Code § 2901. The evidence established beyond a reasonable doubt that on February 16, 1972, at about 7:25 p. m. Butler forcibly took a purse from an elderly woman on the street, and fled. The only factual issue respecting the offense itself is whether he was so intoxicated that he lacked the specific intent necessary to a conviction of robbery. One officer testified that when arrested appellant had alcohol on his breath but appeared to be sober, ran in a straight line, and stood quietly when arrested.¹ Appellant testified he had drunk a good deal of wine during the day, was intoxicated at the time of the offense, had no recollection of it, that he had been diagnosed as an alcoholic “many times,” and had been in mental institutions on four separate occasions as a result of his drinking. It was also stipulated:

If Dr. Lawrence C. Sack, Staff Psychiatrist with D.C. Department of Human Resources were to testify, he would state that he examined and interviewed the defendant, James Lee Butler, on June 12, 1972, and in his opinion the defendant is a chronic alcoholic and frequently drinks to access [sic].

Additional testimony tended to support appellant’s reliance upon his alcoholic habit to preclude a finding of specific intent to rob.

Prior to trial the District Court, on motion of the defense, issued a subpoena for the records of a urine test of appellant conducted at the jail on February 17, 1972, the day after the offense. In response to the subpoena the Senior Medical Officer of the Detention Services, a staff physician at the District of Columbia Jail, advised appellant’s counsel that although urine specimens were submitted that day, “. . . no results have been obtained ... although exhaustive search has been made but to no avail.” Relying upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the defense moved for dismissal. The motion was denied, and it is urged on appeal that this was reversible error since the result of the test was material to the defense and, under Brady, should have, been made available.

The Government contends that even if the test were made there could have been no obligation on its part to disclose its result, since the evidence would not have been obtained by an investigative agency in gathering evidence with respect to the offense. The Government now recognizes, however, that the record is silent as to the purpose of obtaining the sample ■ for testing. It may have been to obtain evidence of appellant’s condition as it might bear upon his condition the evening before, and, in any event, the result of the test might have had a bearing on his condition at that time. If so we think the test would be within the ambit of the discovery rules. The relationship of the evidence to the offense would control the right of the defense to have it preserved, not which agency of the government conducted the test.

The Government also denied any obligation on its part to disclose the result of the test, assuming it was made, since the urine sample was obtained the day after the robbery and, therefore, would have been irrelevant to appellant’s condition at the time of the offense. This is a question of fact as to which the record is silent. If the test were made, present lack of knowledge as to its bearing upon his condition at the time of the offense, if it might have shed light thereon, would not foreclose ■inquiry as to the obligation of the Government to have preserved the evidence, or foreclose consideration of sanctions for failure to do so. United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642, 648 (1971).

. it is the law in this circuit that the due process requirement applies to all evidence which “might have led the jury to entertain a reasonable doubt about [defendant’s] guilt”. . . . (Footnote omitted.)

Ibid. Upon consideration of United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), the Bryant court also concluded that a good faith loss of important evidence “must not be allowed to swallow the discovery rules.” 439 F.2d at 651.

To determine whether the test was made, as to which the record is not clear, and, if made, its possible bearing upon the defense of lack of specific intent, a remand is required, the full scope of which depends upon those determinations. Should a hearing on the remand result in a finding by the District Court that, though a sample of appellant’s urine was taken February 17, 1972, no test was made, that would end the matter, and the judgment of conviction would remain undisturbed. Should it develop that a test was made but its result could not have afforded any significant light upon appellant’s degree of intoxication at the time of the offense then, again, the purpose of the remand would have been served, and the judgment of conviction would remain undisturbed.

Should the court find, however, that the test was made, and that it might have been relevant and material with respect to any criminal proceeding involving appellant growing out of the arrest, then the court would be under the necessity of ascertaining the circumstances which led to the non-preservation of the result of the test, including what procedures if any had been established to preserve such evidence.

. before a request for discovery has been made, the duty of disclosure is operative as a duty of preservation. Only if evidence is carefully preserved during the early stages of investigation will disclosure be possible later.

Ibid.

Finally, the court would be required to consider and decide what sanctions, if any,, should be applied because of the non-preservation and non-availability of the possibly relevant and material evidence.

We turn now again to the Bryant decision for its discussion of possible sanctions in the context of that case:

we hold that sanctions for non-disclosure based on loss of evidence will be invoked in the future unless the Government can show that it has promulgated, enforced and attempted in good faith to follow rigorous and systematic procedures designed to preserve all discoverable ²¹ evidence gathered in the course of a criminal investigation. The burden, of course, is on the Government to make this showing. Negligent failure to comply with the required procedures will provide no excuse. Although we leave it up to the various investigative agencies to draft rules suited to their own method of operation, all such rules will be subject to review of their adequacy to the assigned task. (Emphasis in original.)

439 F.2d at 652.

This discussion in Bryant, however, is directed to the obligation of investigative agencies and cannot be applied unqualifiedly to the authorities at the jail in this case, for they cannot reasonably be held to have construed these obligations of establishing preservation procedures as intended for them as well as investigative agencies. Nevertheless, there was a general obligation upon the custodial authorities to preserve evidence obtained by them which might be relevant and material to the case involving appellant. And if this obligation arose, due to the result of the test, and reasonable care was not exercised in aid of preservation, the question of sanctions arises. Here again Bryant is helpful, for when the evidence is not available:

the issue is whether full sanctions for nondisclosure ought to be invoked absolutely, or whether imposition of sanctions ought to depend upon the circumstances of the material's disappearance.

439 F.2d at 651.

Moreover:

criminal convictions otherwise based on sufficient evidence may be permitted to stand so long as the Government made “earnest efforts” [to be defined quite strictly] to preserve crucial materials and to find them once a discovery request is made.

Ibid. And see the disposition of the Bryant case after the remand. United States v. Bryant, 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971).

A sanction of dismissal of the indictment, urged by appellant, would not be within the range of the court’s discretion in this ease, since it is quite clear that even if the specific intent essential to a robbery conviction might not have been found by the jury, were the result of the test available for the jury to have considered, there was proof beyond a reasonable doubt of the lesser included offense of simple assault, which does not require proof of specific intent. Walker v. United States, 135 U.S.App.D.C. 280, 418 F.2d 1116, 1120 (1969). This suggests the possibility of a sanction of setting aside the robbery conviction and entering a judgment of conviction of simple assault. Cf. United States v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314, 322 (1971).

Should the United States consent, the District Court, as an alternative to a hearing on the remand, may in its discretion adopt the course above suggested as a possible sanction; that is, dispense with such a hearing and set aside the judgment of conviction of robbery and enter a judgment of conviction of simple assault.²

Remanded for further proceedings consistent with this opinion.

1 . The testimony of a teenager, a member of the neighborhood “Courtesy Patrol,” who stopped appellant within seconds after the robbery, is to the same effect.

21 . Although there is an exception for good faith loss of evidence, there is no exception for good faith administrative decision that certain evidence is not discoverable and thus need not be preserved. The Supreme Court made that much clear in Brady v. Maryland, supra Note 6, 373 U.S. at 87, 83 S.Ct. 1194, 10 L.Ed.2d 215. Hence, in framing their rules for evidence preservation, investigative agencies must define discoverable evidence very broadly, including any materials that “might” be “favorable” to the accused. See Notes 5-7, supra. It should also be made clear that by “all discoverable evidence” this court includes materials discoverable under the Jencks Act as well as under Brady and Rule 16.

2 . There was substantial support in the record at trial of appellant’s severe alcoholic habit as it might have borne upon his defense to the robbery charge; and we note that the trial judge submitted to the jury the lesser included offense of simple assault as within the range of permissible verdicts,