OP COLOMBIA COURT OP APPEALS

No. 92-CF-902
f
IL
MAR - 9
COURT OF APPEALS
District of Columbia
criminal Division
(Hon. Herbert G. Dixon. Jr.! 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 hisconviction fordistributionofheroin (D.C.
Code 33-541 (a) (1, appellant assigns sixpoints of error, none
of which we conclude warrants reversal.
First, the trial judge did not abuse his discretion in
refusing to order production of two police forms, the PD-152 and
PD-106. Appellant does not explainhow the forms were discoverable
under Super. ct. Crim. R. 16, and the fact that he sought their
productionma a trialsubpoena under Super. ct. Crim. R. 17 (c) did
not entitlehim 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 requiringproduction only of thosedocuments which
were relevant tothis case -- the PD-127, PD-128, and PD-129 -- the
trial judge properly exercised his discretion.
Second, appellant's motion to 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 that appellant made a timely request
for the photograph shown to Officer Meyers a week after the drug
sale, we find no abuse of discretion in 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
2
defense counsel. Neither in his brief nor at oral argument was
appellant able to point to specific prejudice from the non-
disclosure of the photograph earlier. See Washington v. Untted States,
600 A.2d 1079, 1081 (D.C. 1991).
Fourth, neither the Brady doctrine' nor the Jencks Act, 18
U.S.C. 3500; see Super. ct. Crim. R. 26.2, required the trial
judge to order disclosure of grand jurytestimony of witnesses who
did not testify attrial. Appellant made no showing that any such
testimony was exculpatory under Brady, and, under the Jencks Act,
"disclosure by the government of documents in its possession is
limited to prior statements of a witness who bas testified." Untted
States v. Malcolm, 331 A.2d 329, 333 (D.C. 1975) (emphasis added).
Grand jury testimony by other witnesses in some manner relying upon
statements by persons who have testifiedattrialfails tomeet the
"substantially 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).
Fifth, for the reasons setforth indetail inthegovernment's
brief at pp. 34-43, on none of the occasions appellant cites did
the trialjudge impose improper restrictions on appellant's cross-
examination of government witnesses.
Finally, Logan v. United States, 591 A.2d 850, 853 (D.C. 1991),
requires rejection of appellant's claim that the information
alleging prior convictions failed to give appellant the required
statutory notice of the government's intent to seek an enhanced
sentence.
Affirmed.
FOR THE COURT:
~ ~ t ?
WILLIAM H. NG,
Clerk
, See Brady v. Maryland, 373 U.S. 83 (1963); United States v. Bagley,
473 U.S. 667 (1985).
3
No. 92-CF-902
Copies to:
Honorable Herbert G. Dixon, Jr.
Clerk, Superior Court
Richard Todd Hunter, Esquire
801 North Pitt Street
Suite 209, The Port Royal
Alexandria, VA 22314
John R. Fisher, Esquire
Assistant United States Attorney